FJA Journal - Jan/Feb 2018

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Florida Justice Association • January/February 2018 • #600 ®

Don’t Miss FJA’s 32nd Annual John Romano Workhorse Seminar March 20-23, 2018 Marriott’s Orlando World Center


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JAN./FEB. 2018–NO. 600 2014 March

March 2014



Don’t miss FJA’s 32nd annual John Romano Workhorse Seminar in March!

pg 12


FJA’s Workhorse Seminar is the product of John Romano’s clear vision and endless energy

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Dangerous guardrails line too many of our highways


Misleading statements in closing arguments — issues and remedies


Juror nondisclosure — practice tips for dealing with the most common arguments


Spotlight on FJA Worker’s Comp Section Chair, Richard Chait

Practice tips re delaying a summary judgment hearing — it’s not as easy as it used to be


Autonomous vehicles are nearly upon us, but is the civil justice system ready for them?

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A Type 2 diabetes drug that doubles the patient’s risk of foot or leg amputation

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President’s Message — Dale Swope Executive Director’s Message — Paul Jess Special Focus: 2018 Workhorse Seminar Cases and Commentaries — Kenneth D. Kranz 16   Legislative Notes Tips for Auto Practitioners — Brent Steinberg Insurance — Richard Benrubi Mass Torts — Tim O’Brien Medical Malpractice — Scott R. McMillen and Allison McMillen Products Liability — Poorad Razavi and Leslie M. Kroeger Evidence — Matt Schultz Civil Procedure — Roy D. Wasson Closing Arguments — Philip M. Burlington, Barbara Green and Christopher V. Carlyle CLE Calendar FJA Appellate Practice Section — Celene Humphries FJA Young Lawyers Section — Fay O. Pappas The Briefcase: Why We Fight — Mike Campbell Member Outreach EAGLE Spotlight Index





TREASURER Leslie Mitchell Kroeger

EXECUTIVE COMMITTEE Laurie Briggs Nathan P. Carter Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels


DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora DIRECTORS 2016-2018 Laurie Briggs David C. Dismuke Elizabeth Finizio James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

If you are a paralegal member of the FJA, your membership includes access to the paralegal list server Network with other FJA paralegal

DIRECTORS AT LARGE Thomas W. Carey William T. Cotterall Matthew K. Foster Allison McMillen H.K. Skip Pita Anthony Quackenbush Brent G. Steinberg PRESIDENTIAL APPOINTMENTS Nathan P. Carter AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Celene Humphries

WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller WOMEN’S CAUCUS Amber Hall Kerri C. Smith LOCAL TLA REPRESENTATIVES BCJA– Scott L. Henratty CCJA – TBD CFTLA – Glenn M. Klausman JJA – Daniel A. Iracki MTLA – Bernard F. Walsh MDJA – Shannon Del Prado PBCJA – Peter Hunt TBTLA – James W. Guarnieri, Jr. TCJA – Gloria Seidule AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Adam Langino Ricardo Martinez-Cid Troy Rafferty Herman J. Russomanno Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Jack Hickey Clancey Bounds Daryl D. Parks

members and ask your most pressing questions. To sign up for the


Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.


Journal is published by Innovative Publishing for FJA. Innovative Publishing specializes in creating custom publications for associations. Please direct inquiries to Aran Jackson at



This time of year, the full focus and attention tends to turn to the legislative session. And why not? FJA members and staff have worked for years to effect a fundamental change in how automobile injury claims are handled and insured, to get rid of the hated permanency requirement, the $10,000 PIP offset, and to require mandatory BI for all drivers. Everything has culminated to make this moment the best chance we may ever have to actually turn that vision into a reality. The sponsor of the House bill, FJA member Erin Grall, jumped in early and started throwing elbows to get the bill through committees and ready for the House floor before the session even starts. The lobby team has incessantly worked the deep and swirling politics of the Florida Senate to help clear a path through multiple committees and, leadership willing, onto the floor for early passage there as well. And, aside from the mandatory auto insurance bill, we have a reasonable chance of passing a powerful bill to create civil remedies against businesses that abet and profit from human trafficking. This dark and evil enterprise oozes just beneath the pastel watercolors of our state’s tourism industry, and government regulation has shown itself sadly inadequate to stop it. The civil justice warriors are the best hope for the victims and the worst nightmares for the complacent accomplices, and, if we get this bill passed, we will save lives. It is that simple. 8 | January/February 2018 |

There is a bill to elevate texting while driving to a primary offense — something that should have been done long ago. Pass it, and it will save lives. We have also gained a seat at the table to ensure that the autonomous vehicles that hold so much promise for our future are introduced safely and responsibly onto our roadways. Our kids may never know what we did for them, but we will know that we shaped the future and made it better for them, if we do our job right. We stand ready to defend the gains that injured workers have recently made in the courts and against the insurance industry’s perennial attack on our remedies for their bad faith. ALL of that is on the line and more, and it is all coming down during the eight-week stretch that people in Tallahassee just call “Session.” The FJA is like a team that has trained, and practiced, and prepared, all with an eye to ONE BIG CHAMPIONSHIP — and this session, right now, is our championship. It is the NCAA and Super Bowl plus the World Series all in one except that it is not a game. Lives are literally on the line. This work is, honestly, about as real as it gets. So, Session is obviously an engaging, alluring, consuming passion. But in the middle of all that, we still have massive, ongoing efforts to make the FJA itself better and stronger, and more valuable for its members than ever before. At the heart of that, of course, is the

critical, unavoidable job of raising funds. And our need for funds, like everything else in the world, has gone up again this year. Well, I am thrilled to report that as I was writing this in early January, I got confirmation that our EAGLE team and YOU — the membership of the FJA — have broken all records and fully underwritten the largest EAGLE budget in FJA history. That’s kind of cool, but here is the thing that makes it crazy — this was also the largest political budget ever in a non-election year, by a country mile.

EAGLE programs. That overwhelming generosity will allow us to begin seriously funding our endowment — a grail we have chased for years — and make possible some sweet organizational reforms you will be hearing about as soon as we can implement them. In light of that massive gift, I am prepared to publicly forgive Steve for going to Plant High School, and also for getting consistently better grades than me in his CLE presentations. Thank you, Mr. Yerrid!

And this all happened while at the same time, I have been generating a stupid amount of extra work for everybody with the new membership benefits and fundraising plan. Meeting these funding goals in the swirl of everything else that is going on is an extraordinary achievement by our professional fundraising team. Rob Paulk, John (Marin’s dad) Fox, Elisha Charpentier, John Brazzell and Lizzy Shane have done amazing work, but then, they are professionals. The true superstars of this effort have been the president just before me, and the one who is about to follow, Jimmy G and Trey Lytal together with all of our Regional Vanguard Chairs.

Finally, by the time you read this we should have begun implementing our formal mentorship program, thanks to the following stellar group of members who have agreed to be on that committee:

They just freaking handled it, and for that I am — and YOU should be — eternally grateful. And speaking of YOU….

Expect a communication that will have all the details, but if you would like to mentor as many as three new members, please let us know — ESPECIALLY if you are a woman, a young lawyer with wisdom to share, an appellate attorney who wants to mentor young wannabe competitors, a member of a diverse cultural or racial group, or an LGBT member, we definitely need you. We also need you if you are just old and boring, but have made enough mistakes in your practice that you have something to share to help the kids who are following in our steps avoid repeating them all! Contact Angela or Ben for now, so they can get you into the database for assignment of protégés in the very near future. It won’t hurt!

Nobody at FJA ever forgets that the true burden of all this fundraising is borne by the people who are writing the checks. Asking for money is hard. Writing the actual checks, for most of us, is even harder. So, thanks to all of you who responded to the calls and requests for PAC contributions and enhanced EAGLE membership pledges. The last thing I want to say about fundraising is this: At the very end of the year, I got word that Steve Yerrid, one of the very few members whose portrait already hangs in the FJA’s hallowed pantheon of lifetime EAGLE contributor champions, had bestowed another enormous gift of over a quarter million dollars to our

Eric Romano Trey Lytal Leslie Kroeger Tiffany Faddis Laurie Briggs Angela Rodante (Chair)

PJ Scheiner Lefferts Mabie III (that’s right! LLMIII!) Patrick McArdle Brenda Fulmer Elizete Velado Ben Whitman (Co-Chair)

Finally, if I haven’t said this before, THANK YOU for letting me be your president. I’m having a ton of fun doing it. | January/February 2018 | 9



A full display of the Florida Justice Association’s horsepower is on tap at the 32nd annual John Romano Workhorse Seminar. In this issue of the Florida Justice Association’s Journal, you will learn more about the seminar. But first, I want to share with you how the event came about. It all started with John Romano. In December 2017, the Florida Justice Association’s Board of Directors named the seminar after John, its founder and former Florida Justice Association president. This is a well-deserved honor for an outstanding advocate for clients and a true friend. John is an accomplished lawyer who is up for any challenge you throw at him. He has tried just about every kind of case, both civil and criminal. This includes cases involving failure to diagnose cancer, product defects, drug and vaccine defects, libel and slander, vehicular collisions, personal injury, murder, armed robbery, and wrongful denial of health insurance benefits. John created the Florida Justice Association’s Workhorse Seminar to provide our members with the best legal education available to enhance the work they do every day in civil litigation cases. The goal is to provide the Florida Justice Association’s members with a competitive edge in the courtroom. The seminar came to life because John felt that most seminars had too much “fluff” and lacked true substance for attendees. He aimed to create a high-energy, hard-charging CLE program packed with substance from open to close. John insisted it had to be a one-day seminar — and that that day would be a long, hard, tough day with a great reward for attendees. The vision 10 | January/February 2018 |

brought to mind what John’s days in the U.S. Marine Corps must have been like. The seminar would start before dawn and go into the night — no distractions and very few breaks. Every hour would be packed with cutting-edge legal education from America’s best trial lawyers. It would be one year’s worth of CLE packed into one day. He came up with a name that reflected what the seminar was all about: Workhorse. John’s idea for one day of intensive immersion in legal education was a hit. Throughout the years, this must-attend event has grown to four days and attracted nationally recognized leaders who have shared their insights on the latest legal strategies and tactics. John’s vision for Workhorse filled a hole law schools left in their preparation of students to succeed as advocates for clients. Workhorse provides a rare opportunity for attorneys to learn at the feet of the greats in our field.

While he played football in college for the Florida State Seminoles, it was the U.S. Marine Corps that shaped John’s love for the law and passion for tackling huge challenges in the pursuit of justice for his clients.* As lawyers, we can always get better and do better. It takes a life-long commitment to evolving in the profession. That means you must be open and willing to learning something new. That’s why this year’s Workhorse agenda is so exciting. Attendees will have the opportunity to learn more about the business of lawyering, get practical tips on challenging expert witnesses, participate in the Florida Justice Association’s annual medical school for lawyers, and attend other valuable sessions. We’ve also got Dr. Bennet Omalu — the first doctor to diagnose chronic brain damage in NFL players — to provide a keynote address. You may remember his story portrayed by actor Will Smith in the 2015 film, Concussion. It’s clear, this year’s John Romano Workhorse Seminar has something for everyone. More importantly, this year’s seminar is squarely about helping you improve your practices.

John often reminds us of the “Three Agendas” at play in every case. 1. The agenda of the client. 2. The agenda of the client. 3. The agenda of the client. To be better attorneys, we should follow John’s lead and embrace our practices, stay laser-focused on the clients’ objectives, and steadfastly defend the civil justice system. We do that by continually learning how to be better advocates for our clients. That mission continues this year in Orlando at the John Romano Workhorse Seminar. I hope to see you there. * Executive Director’s personal note: As former U.S. Marine Corps and U.S Navy veterans, respectively, John and I used to meet each other at 0600 before Academy of Florida Trial Lawyer meetings and go jogging together. I’m guessing we will NOT be doing that at this year’s Workhorse Seminar. ;-)

FJA WEBINARS TAKE ADVANTAGE OF FJA’S PREMIER CLE ONLINE AND ON-DEMAND DRAFTING A CIVIL REMEDY NOTICE FOR UM & PROPERTY CASES WEBINAR (2016) $59, $49 for Young Lawyers $39 Paralegals 1.5 Hours of General CLE, 1.5 Hours of Civil Trial Certification PROPOSALS FOR SETTLEMENT WEBINAR (2016) $199; $129 Young Lawyers; $99 Paralegals 3.5 Hours of General CLE; 0.5 Hour of Ethics; 3.5 Hours of Civil Trial Certification COLLATERAL SOURCES WEBINAR (2017) $285 Members; $485 Non-Members 5.0 Hours of General CLE; 1.0 Hour of Ethics; 5.0 Hours of Civil Trial Certification

PERSONAL INJURY BOOT CAMP WEBINARS INDIVIDUAL (2017) $19; Series (10): $119 (Complete Topic Listing on FJA Website) Each one: 1.0 Hour of General CLE; 1.0 Hour of Civil Trial Certification THORNY LITIGATION ISSUES WEBINAR (2017) $149 4.0 Hours of General CLE; 0.5 Hours of Ethics; 4.0 Hours of Civil Trial Certification



workh John Romano’s


MARCH 20-23 . MARRIOTT’S ORLANDO WORLD CENTER For 31 years, the FJA John Romano Workhorse Seminar has provided FJA members with advanced legal training from the best plaintiff attorneys in Florida and in the country. The 32nd Annual Seminar will provide not only the best innovative ideas to give you the competitive advantage BUT also the horsepower you need to win your cases and the strategies, tips and proven results from other attorneys. The faculty of the Workhorse Seminar® is known for its intellectual horsepower, and they are there over the four days to share their knowledge with you. Come to the FJA John Romano Workhorse Seminar to navigate around those legal minefields and add game plans to your litigation playbook.

KEYNOTE FRIDAY 3.23.18 Featuring Dr. Bennet Omalu

First Doctor to Diagnose Chronic Brain Damage in NFL Athletes In 2002, Dr. Omalu made a career breakthrough when he became the first doctor to discover and identify chronic brain damage as a major factor in the deaths of some professional athletes. He called the disease Chronic Traumatic Encephalopathy (CTE), which he first discovered as the result of an autopsy he performed on Mike Webster—one of the best Centers in NFL history. APPEARANCE SPONSORED BY

horse TUESDAY, MARCH 20, 2018

7:00 am - Noon The Business of Lawyering 1:30 pm - 5:30 pm The Magic of Advocacy

6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: FJA Annual Settlement Institute Advocacy Session B: Expert Witness Travel Journey Advocacy Session C: “My First Trial”


7:00 am - Noon Potpourri of Essential Topics

1:30 pm - 5:30 pm FJA Annual Medical School for Lawyers 6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: 50 Shades of Attorney Fees Advocacy Session B: LOPs, Billing, Defending Depositions of Physician Billing Managers, Lien Resolution, MSAs, Protecting the Treating Physicians Advocacy Session C: Understanding and Appreciating the Details and Nuances of Everything You Must Know Relating to First Party Bad Faith and Third Party Bad Faith Cases


7:00 am - Noon Damages in Personal Injury and Wrongful Death Cases

ACCOMMODATIONS Marriott Orlando World Center 8701 World Center Drive | Orlando, FL 32821 FJA Group Room Rate: $219 Resort Fee: $25/night Please make your room reservations by February 26, 2018 at 5:00 pm to receive the FJA Group Room Rate.

To make a reservation, please call 1-800-228-9290

1:30 pm - 5:30 pm Product Liability 6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: Overcoming Major Legal Hurdles in Personal Injury and Wrongful Death Cases Advocacy Session B: The “TLC” (Trial Lawyers College) Method of Handling, Litigating, and Trying Cases to Jurors Advocacy Session C: Class Actions — Understanding the Power of Class Action Cases in Terms of Winning Just and Essential Causes

FRIDAY, MARCH 23, 2018

7:00 am - 4:30 pm Traumatic Brain Injury/Closed Head Injury


TUESDAY - The Art, Science, and Methodology of “Showing the Story” to the Judge and Jury Sach D. Oliver, Bailey & Oliver, Rogers, AR WEDNESDAY– An Entertaining Presentation on “Memory” and How You As a Trial Lawyer…with an Enhanced Memory…Can Significantly Increase the Benefits Which You Bring to the Case, Ron White, National Memory Champion and Renowned Brain-Athlete, Grapevine, TX THURSDAY – Compassionate Gladiator and Gladiatrix Award Ceremony Kathleen Lenehan Nastri, Koskoff, Koskoff & Bieder Law Firm, Bridgeport, CT, and Kent Whittemore, The Whittemore Law Group, P.A., St. Petersburg, FL State of the FJA Address Dale Swope, FJA President, Swope, Rodante, P.A., Tampa



In Brief by Kenneth D. Kranz, Editor in Chief

The Supreme Court authorized two changes to the standard jury instructions in civil cases relating to the introduction of participants and their roles and to juror questions. In Re: Standard Jury Instructions in Civil Cases—Report 17-01, So.3d , 42 FLW S923 (Fla. 11-16-2017). Instruction 201.2 was amended to inform jurors that any communication with the judge must be in writing, and Instruction 202.4 was amended to clarify that jurors must ask questions of a witness before the witness leaves the stand. In its annual review of judicial workloads and determination of the need for judges, the Supreme Court certified to the Legislature a need for two additional circuit court judges, two additional county court judges, and no additional judges in the district 14 | January/February 2018 |

courts of appeal; and it recommended the decertification of 13 county court judgeships. In Re: Certification of Need for Additional Judges; So.3d , 42 FLW S937 (Fla. 11-22-2017). The Court certified the need for two additional circuit court judges in the 9th Circuit and two additional county court judges in Hillsborough County. Based on its analysis of downward filing trends, the Court recommended the decertification of 13 county judgeships in: Escambia (1); Leon (1); Pasco (2); Putnam (1); Alachua (1); Polk (1); Monroe (1); Brevard (3); Charlotte (1); and Collier (1) counties. The Supreme Court authorized several technical amendments to the Standard Jury Instructions in Civil Cases. In Re: Standard Jury Instructions in Civil Cases—Report No. 17-04, So.3d , 42 FLW

S939 (Fla. 11-22-2018). The amended instructions are 403.17 (Burden of Proof on Main Claim); 408.2 (Summary of Claims or Contentions); 409.10 (Burden of Proof on Main Claim); 415.4 (Retaliation; Adverse Employment Action); 415.5 (Protected Activity); 415.10 (Issues on Plaintiff’s Claim); 415.12 (Unlawful Retaliation Damages); and Model Verdict Form 4. The Supreme Court held that in Engle progeny tobacco cases, comparative fault does not apply where the jury finds for the plaintiff on intentional torts and the jury awards for the compensatory damages are thus not subject to reduction. Schoeff v. R.J. Reynolds Tobacco Co., So.3d , 42 FLW S951 (Fla. 12-142017). As part of this decision, the Court rejected the lower court conclusions, including that in R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473 (Fla. 1st DCA 2014), that the intentional tort exception is waived when an Engle progeny plaintiff argues comparative fault on related negligence counts, and it quashed the Fourth DCA’s holding that the plaintiff had thereby waived the intentional tort exception. The FJA, represented by Gary M. Farmer, Sr., participated as Amicus Curiae. However, a few weeks before the Supreme Court quashed the Fourth DCA’s decision in Schoeff, the Fourth DCA in another Engle progeny case relied on its own earlier decision in Schoeff and the decision in Hiott to conclude that the reverse of the situation in Schoeff is also true, finding that in this case the defendants waived their right to a reduction of the verdict for comparative fault where they repeatedly suggested to the jury that there would be no reduction of the compensatory damages award for comparative fault. Philip Morris USA, Inc. v. Marchese, So.3d , 42 FLW D2475 (Fla. 4th DCA 11-22-2017). “In this case [defendants] each pled the affirmative defense of comparative fault, and disagreed with a proposed jury instruction that comparative fault would not be applied. Nonetheless, they repeatedly referenced the fact that [plaintiff] would receive the entire compensatory damages award. [Defendants] did not reveal to the jury that they were going to seek comparative fault after the trial.” The court noted that trial strategy elections have consequences: “In both [R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 486 (Fla. 4th DCA 2015)] and [R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473 (Fla. 1st DCA 2014)], we held that a party waives his right to object to a reduction when he tells the jury that comparative fault will apply. ... The reverse is also true. [Defendants] elected to waive their right to a reduction of the verdict when they repeatedly and expressly told the jury that comparative fault would not apply.” Concluding that a writ of quo warranto is inappropriate to address prospective conduct, the Supreme Court dismissed a petition seeking to prohibit the governor from filling any vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019. League of Women Voters of Fla. v. Scott, So.3d , 42 FLW S965 (Fla. 12-14-2017). Most prominent among those affected are Justices Lewis, Pariente and Quince, who will be forced to leave the bench next January because of the mandatory retirement age. The Court explained: “Although Governor Scott announced his intent to appoint the replacements for three justices of this Court,

clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application the writ. This we decline to do. Until some action is taken by the governor, the matter the league seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.” Thus, this critical question remains open as to whether the three new justices will be appointed by the departing governor or his successor in office. The trial court erred in denying a county’s motion for a directed verdict in a slip and fall case where the plaintiff had failed to introduce any evidence to show that the county had constructive notice of the allegedly dangerous condition; a food establishment inspection ordinance does not imply constructive notice of a dangerous condition. Miami-Dade County v. Jones, So.3d , 42 FLW D2382 (Fla. 3rd DCA 11-8-2017). The plaintiff slipped and fell on a public sidewalk while visiting an adjacent barbecue stand located on private property. She alleged that a faulty grease disposal system underneath the barbecue stand caused grease to spill out onto the sidewalk, creating the slippery condition on which she fell. She sued the operator of the stand for creating the dangerous condition and the county for negligently maintaining the sidewalk by allowing the dangerous condition to remain. In support of her claim against the county and to show that the county had constructive notice of the grease spill, the plaintiff relied heavily on photographs of the sidewalk that showed a discoloration on the sidewalk in the area of the alleged grease spill. She also introduced evidence over objection that county ordinances required inspections of food establishments and that the barbecue stand was owned and operated by off-duty county employees. The jury returned a verdict finding the barbecue stand and the county each 50 percent liable, and the county unsuccessfully moved for a directed verdict, judgment notwithstanding the verdict and a new trial. In reversing and remanding for entry of judgment in favor of the county, the Third DCA held that there was no evidence in the record indicating that a grease spill had occurred on the discolored sidewalk even once, much less with such frequency that the county should have known about it. It also found improper the introduction of the ordinance: “The mere fact that an ordinance may cover the subject of inspecting food establishments does not imply that the County had constructive notice of a dangerous condition created by a food establishment. In fact, the ordinances would only be relevant in this case if they were introduced to show that the County should have but failed to comply with its duty to inspect the barbecue stand.” Finally, the court found that it was error to allow the introduction of evidence that the stand was run by off-duty county bus drivers as it was not only irrelevant but prejudicial because it allowed the jury to infer that the county should have been put on notice of the dangerous condition by these employees or, worse, implied that the county should be held liable for the negligence of its off-duty employees. The Fourth District again held that Surgeon General’s Reports regarding tobacco use are hearsay that are inadmissible as public records or adoptive admissions and may not be used to bolster the opinions of testifying experts. R.J. Reynolds Tobacco Co. v. | January/February 2018 | 15

CASES&COMMENTARIES McCoy, So.3d , 42 FLW D2408 (Fla. 4th DCA 11-8-2017). The court held that the plaintiff’s extensive reliance on the reports throughout the trial precluded a finding that it was harmless error and ordered a new trial. See Phillip Morris USA, Inc. v. Pollari, So.3d , 42 FLW D1896 (Fla. 4th DCA 8-30-2017). The court reached the same result in R.J. Reynolds Tobacco Co. v. Ryan, So.3d , 42 FLW D2621 (Fla. 4th DCA 12-13-2017). A new trial was required in an Engle progeny tobacco case where the trial judge in response to an inquiry from the jury gave an answer that was improperly calculated to prevent the jury from requesting a readback of testimony. Philip Morris USA, Inc. v. Duignan, So.3d , 42 FLW D2426 (Fla. 2nd DCA 11-15-2017). The judge responded that although a readback was “not impossible,” it “is not generally done” and that the jury should rely on its “collective recollection,” in part because a readback places undue emphasis on the witness whose testimony is being read back. The Second DCA noted that the rules relating to readbacks were adopted in a criminal case, Hazuri v. State, 91 So.3d 836 (Fla. 2012), which nevertheless should apply in civil cases: “(1) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and (2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.” Here, the court concluded: “It takes no feat of imagination to see how [the judge’s] response might lead reasonable lay jurors to think that asking for a readback would be a fool’s errand. In substance, the trial court communicated to them that a readback was something extraordinary, that it was extraordinary because it gave the witness whose testimony was read back undue influence, and that the jurors instead should rely on their collective recollection of the testimony. The trial court’s remarks, combined with its silence on the jury’s right to at least ask for the testimony to be read back, in essence and effect, informed the jurors ‘that their only recourse was to rely upon their “collective recollections and remembrances” as to’ [the witness’] testimony

because transcripts were unavailable and a readback would not be forthcoming. … That was error.” See the Civil Procedure column in the November/December issue of the Journal for an in-depth discussion of this decision. A corporate officer’s election to exempt himself from the worker’s compensation law pursuant to §440.02(15)(b)1., Fla. Stat., does not have the effect of removing him entirely from the workers’ compensation system and opening the door to actions in tort against individuals and entities who would otherwise be entitled to worker’s compensation immunity. Gladden v. Fisher Thomas, Inc., So.3d , 42 FLW D2441 (Fla. 1st DCA 11-15-2017). The court held that the plaintiff’s exemption as a corporate officer did not circumvent the immunity protections of §440.11, except as provided by §440.075, which permits an exempt corporate officer to proceed against “the corporate employer” at common law in an action to recover damages for injury or death. “The fee agreement between a lawyer and client, no matter how reasonable, does not control the amount of fees assessed against a third party under a fee-shifting statute.” Forthuber v. First Liberty Ins. Corp., So.3d , 42 FLW D2459 (Fla. 5th DCA 11-17-2017). Here, as to a fee awarded against an insurance company pursuant to §627.428, Fla. Stat., the Fifth DCA held that the trial court erred in failing to consider the hours expended on the case by the plaintiff’s attorney while he was working at a prior law firm that originated the claim on the plaintiff’s behalf, finding that “the trial court should have considered all of the hours reasonably expended by all of [plaintiff’s] attorneys in its calculation of a fee to be awarded to the insured.” The trial court had rejected those hours because the firm had withdrawn from representing the plaintiff before the conclusion of the case, thereby waiving any claim to a fee. The court noted that under the statute the entitlement to a reasonable fee is the plaintiff’s right, not his attorney’s, and to conclude that the statute only permits the

LEGISLATIVE NOTES This is being written on the very eve of the 2018 Regular Legislative Session, but, by the time you receive it, the 2018 Session will be nearly over. This will be a busy Session for the FJA, with many critical issues, both pro and con, expected to be heard. Prominent among those is the PIP repeal/mandatory bodily injury bill, whose prospects for passage this year are looking very favorable. We expect battles again this year over workers’ compensation attorney’s fees and the move to limit the well-established right of homeowners to assign their insurance benefits to home repair contractors, who in turn then have the ability to pursue payment for their work directly from the insurer, and includes an effort to limit insurers’ liability for attorney’s fees in these cases. These issues and many others will have been the focus of the FJA’s legislative efforts this Session. Look for an in-depth Session recap in the next issue.

16 | January/February 2018 |

During the Session, timely information on fast-breaking legislative matters that will affect your practice is provided through the FJA website and regular updates from FJA. For detailed information on bills and amendments, complete legislative history, calendars, and access to archived and real-time coverage of legislative proceedings, visit the legislative websites at www.flsenate.go and Calendar 2018 Regular Legislative Session January 9 to March 9

court to reimburse the plaintiff for fees incurred ignores the plain language of the statute and distorts its objective of leveling the playing field. In awarding attorney’s fees as a sanction under §57.105, Fla. Stat., the trial court erred by imposing joint and several liability for the fees on the party and its law firm. Austin & Laurato, P.A. v. State Farm Fla. Ins. Co., So.3d , 42 FLW D2463 (Fla. 5th DCA 11-17-2017). Under the statute each could only be held responsible for 50 percent of the attorney’s fees sanction. In awarding a compensatory fine for civil contempt based upon a party’s willful failure to attend and participate in a courtordered mediation, the trial court erred in including attorney’s fees and costs related to preparation and attendance at a summary jury trial that occurred prior to the contempt. Gozzo Development, Inc. v. Esker, So.3d , 42 FLW D2474 (Fla. 4th DCA 11-222017). The court noted that the contemptuous conduct must cause the loss being recompensed by a compensatory fine. In this case the fine was flawed because the contempt — the failure to attend and participate in the mediation — could not have caused damages incurred prior to the contempt. It held that the compensation should include only the fees and costs related to attendance at and preparation for the mediation, preparation of motions for sanctions and preparation for and attendance at all hearings related to those sanctions, and preparation for and attendance at all hearings related to those motions, depositions taken in pursuit of the contempt sanction, and preparation for the new damages hearing. Question certified: “Does a District Court of Appeal have jurisdiction to grant a petition for second-tier certiorari in a case in which there is a direct conflict on a determinative issue as between (a) the circuit court appellate division case which is the subject of the second-tier petition, and (b) a decision by a different circuit court appellate division panel within the same district, when each of the conflicting decisions was rendered in the absence of a controlling decision by the district court for that district? Allstate Fire and Casualty Ins. Co. v. Hallandale Open MRI, LLC, So.3d , 42 FLW D2503 (Fla. 3rd DCA 11-29-2017). Here, the Third DCA concluded it did not have jurisdiction, but it certified the question as to whether second-tier certiorari jurisdiction should extend to pending intra-district appellate division conflict cases. A dismissal on the grounds of forum non conveniens is not a judgment or ruling on the merits, but rather a ruling which merely provides that another forum is more convenient and would best serve the ends of justice, so it does not result in a “prevailing party” for purposes of entitlement to costs pursuant to §57.041, Fla Stat., and Fla.R.Civ.P. 1.525. Magdalena v. Toyota Motor Corp., So.3d , 42 FLW D2513 (Fla. 3rd DCA 11-29-2017). “A party cannot obtain documents containing privileged trade secrets without establishing a reasonable necessity for breaching the privilege.” Niagara Industries, Inc. v. Giaquinto Electric, LLC,

So.3d , 42 FLW D2576 (Fla. 4th DCA 12-6-2017). Here the trial court erred in finding that the party requesting disclosure had established a reasonable necessity to breach the privilege without presenting any evidence. The court noted: “We do not hold that a requesting party must always present evidence. However, by failing to do so they are at risk of being unable to overcome the testimony of the movant [for a protective order].” A claim for intentional infliction of emotional distress based on long-delayed discovery of a funeral home’s mishandling of cremated remains was improperly dismissed on statute of limitations grounds. Kendron v. SCI Funeral Services of Fla., LLC, So.3d , 42 FLW D2584 (Fla. 5th DCA 12-8-2017). In 1998 the plaintiff, son of the deceased, hired the defendant funeral home to handle his mother’s cremation and funeral, after which her cremains were to be laid to rest beside her late husband. Sixteen years later, in 2014, the plaintiff received a letter from the funeral home informing him that the cremains were in fact not interred, that the funeral home was still in possession of his mother’s ashes, and that he was going to be charged a storage fee if he did not come by and pick them up. The plaintiff sued the funeral home for tortious interference with human remains, intentional infliction of emotional distress, and negligent infliction of emotional distress, claiming that as a result of the funeral home’s actions he suffered from depression, stress, anger, and anxiety, all of which required medical attention. The trial court found all of the claims were barred by the statute of limitations and dismissed the complaint with prejudice. The Fifth DCA agreed that the statute had run on the tortious interference with human remains claim, but reversed on the other claims. It noted that “[t]he elements of a cause of action for intentional infliction of emotion distress are: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused | January/February 2018 | 17


emotional distress; and (4) the emotional distress was severe. … The elements of negligent infliction of emotional distress are: ‘(1) the plaintiff must suffer a discernable physical injury; (2) the physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.’” It explained that the plaintiff’s claim for intentional infliction of emotional distress did not accrue until he experienced severe emotional distress, and his claim for negligent infliction of emotional distress would not accrue until he experienced a discernable physical injury. It held that, while it was unclear whether the plaintiff would be able to prove the elements of these causes of action, it was error for them to be dismissed based on the statute of limitations. In a slip and fall case, where the undisputed summary judgment evidence was only that the floor at the entrance to the defendant business was wet and that the plaintiff slipped and fell, but there was no evidence suggesting that the liquid had been there for a long period of time or that this wet floor condition happened regularly, the trial court properly granted summary judgment in favor of the defendant. Lago v. Costco Wholesale Corp., So.3d , 42 FLW D2599 (Fla. 3rd DCA 12-132017). Under §768.0755, Fla. Stat., the plaintiff must prove that the business establishment had actual or constructive notice of the dangerous condition caused by the transitory foreign substance and should have taken action to remedy it. The statute provides that constructive knowledge may be proven by circumstantial evidence that the condition existed for such a length of time that in the exercise of ordinary care the business should have known of the condition or by evidence that the condition occurred with regularity and was therefore foreseeable. A loss of consortium claim by the wife of a plaintiff in an Engle progeny case is a separate and free-standing claim belonging to the wife individually, and she can neither be considered an Engle class member for purposes of her individual claim nor does her claim relate back to the date of her husband’s timely filed lawsuit. Philip Morris USA Inc. v. McCall, So.3d , 42 FLW D2629 (Fla. 4th DCA 12-13-2017). The court concluded in this case that the plaintiff’s loss of consortium claim was time-barred. Art. IX, Sec. 1(a), Fla. Const., which articulates the state’s duty to make adequate provision for an efficient and high quality system of free public schools is essentially unenforceable by the courts because the constitutional text does not contain judicially discoverable standards by which a court can decide whether the state has complied with organic law, separation of powers requires judicial deference to the legislative and executive branches in matters of educational policy, and there is no language or authority in the constitution that would empower judges to order the enactment of educational policies regarding the funding and operation of schools. Citizens for Strong Schools, Inc. v. Fla.

18 | January/February 2018 |

State Board of Education, So.3d , 42 FLW D2640 (Fla. 1st DCA 12-13-2017). This challenge to adequacy of the state’s compliance with this constitutional provision was rejected as raising political questions that are not subject to judicial review. In a premises liability case involving a workman who had been injured in a fall from a ladder, the defendant premises owner was entitled to a directed verdict where the evidence presented by the plaintiff failed to establish the cause of the fall or even precisely where the fall occurred. Davie Plaza, LLC v. Iordanoglu, So.3d , 42 FLW D2645 (Fla. 4th DCA 12-13-2017). The plaintiff had been employed as a handyman by a diner that leased space from the defendant shopping center. The fall occurred at night when the plaintiff’s supervisor asked him to go up onto the roof to clear water that was leaking into the restaurant. The roof had two levels, and in order to get to the water, which was on the higher level, the plaintiff had to climb a ladder to the lower level, pull the ladder up to the roof, and then use it to climb to the higher level. The ladder that he was using belonged to the restaurant and was a 12-foot step ladder, which, rather than opening as a step ladder would normally be used, he leaned against the building with the ladder in the closed positon. After clearing the water from the higher section of the roof, he descended the ladder to the lower level and then repositioned the ladder, again with it leaning against the building, so as to be able to reach the ground from the lower level. As he began this final descent he fell backwards to the ground and was seriously injured. In the ensuing litigation, the plaintiff alleged that the property had a latent defect in the premises consisting of “uneven, cracked and defective exterior walkway/parking lot located in the area where [plaintiff] placed his ladder” and that this uneven area collapsed under the foot of the ladder, causing him to fall. After a jury verdict for the plaintiff, the defendant unsuccessfully moved for a directed verdict, and the appeal ensued. The Fourth DCA agreed with the defendant that the initial inference that the plaintiff placed his ladder on an uneven surface or defect in the premises was never proved to the exclusion of other reasonable inferences as to the actual cause of the fall because the plaintiff could not establish exactly where the plaintiff placed the ladder and did not know exactly what made him fall. “Absent clarity as to where [plaintiff] placed the ladder, one can only speculate where the ladder was placed, and thus, whether a defect in the premises at that location was even present. A finding of liability cannot be based on such speculation.”


is editor-in-chief and columnist for the FJA’s bimonthly Journal. He has 40 years of legislative experience and formerly served as the Senior Legislative Counsel with various responsibilities related to the FJA legislative activities. | January/February 2018 | 19


THE RISE OF THE ROBOT CAR: How Autonomous Vehicles May Destroy Accident Victims’ Rights and Your Auto Practice by Brent Steinberg Winter is coming. Like White Walkers marching south on Westeros, robots will be driving on Florida roadways much sooner than you think. And while autonomous vehicles (AVs) should eventually result in safer roads, decreased traffic congestion and increased mobility, a bumpy road assuredly lies ahead while the robots learn how to drive. As AV manufacturers endeavor to enter the more advanced testing stage, a coalition of big auto industry players is feverishly working to enact laws at both the state and federal levels that would greatly expand the rights of developers to operate their AVs on public highways without any human monitoring. In the process, they are seeking to eliminate virtually all governmental oversight and immunize themselves from civil liability, instead promising that the “free market” will ferret out those irresponsible or incompetent AV manufacturers. Tell that to the mother whose child gets run over in a school zone crosswalk because an AV failed to detect the little person crossing the street. In fact, by the time this issue of the Journal hits your desk, anti-consumer AV bills may very well be headed to the White House and/or Governor Scott’s mansion. Many of us have fallen asleep at the wheel. It’s time to wake up and pay attention, because an army of AVs is bearing down upon us. 20 | January/February 2018 |

I. Warning: Objects Driving Themselves Are Closer Than They Appear

What does an “autonomous vehicle” really mean? The U.S. Department of Transportation has defined six different levels of autonomous driving. At Level 0, the system controls nothing, but may issue warnings (like blind-spot monitoring). At Level 5, the vehicle is “fully autonomous,” requiring no human intervention other than plugging in the destination and switching on autonomous mode. For context, Tesla’s Autopilot system currently operates at a mere Level 2. At least until these machines develop a consciousness, become self-aware, and take over the world,1 all the major auto manufacturers are buying in. For example: • GM and its recently acquired Cruise Automation are projecting the launch of a public robotaxi service in major metros by 2019.2 • For the 2020 Tokyo Olympics, Toyota expects to showcase vehicles capable of highway driving without any human intervention.3 • Nissan’s CEO has similarly predicted AVs capable of city driving (Level 4 AVs), confidently stating, “I’m telling you, it will be ready by 2020.”4 • By 2021, Ford anticipates operating ride sharing vehicles without steering wheels or gas pedals in several U.S. cities.5

• Hyundai and Volkswagen recently entered into an agreement with Aurora Innovation Inc., a company founded by former AV tech leaders from Google and Tesla; both vehicle manufacturers announced plans to implement self-driving software in their production lines by 2021.6 • This isn’t Star Trek. Level 4 or 5 vehicles are less than five years away. And analysts predict that within 15 years, 80 percent of Americans will no longer own vehicles but instead hail fully autonomous, electric ride-shares to get around.7 Of course, to reach the seemingly sci-fi levels of “full automation,” manufacturers and software developers need to test their products extensively. One major problem has been finding states willing to allow AVs on their public roadways. For example, New York requires companies to pay for police escorts during test drives.8 On the other hand, states like Arizona are welcoming AVs with open arms and little to no restrictions.9 While this state-by-state patchwork of AV regulations has proved inconvenient for developers, it is sure to only be temporary. Actions by both the executive and legislative branches in 2017 indicate that the federal government will soon be stepping in, deregulating, and creating national standards for AVs.

II. NHTSA Guidelines – A Voluntary Guidepost, for Now at Least

In September 2017, the National Highway Traffic Safety Administration (NHTSA) issued its updated guidance to the AV industry, titled “Automated Driving Systems 2.0: A Vision for Safety” (ADS 2.0). Indicative of the Trump administration’s tendency toward deregulation, ADS 2.0 scaled back several aspects of the initial guidance issued a year earlier by the Obama administration.10 The NHTSA guidelines are just that — a “nonregulatory approach to automated vehicle technology safety,” with “voluntary guidance and suggestions” for the automotive industry and state legislatures.11 While NHTSA envisions creating and enforcing Federal Motor Vehicle Safety Standards to regulate AVs themselves, it anticipates that state legislatures will “regulat[e] the human driver and most other aspects of motor vehicle operation.”12 Of particular importance to the FJA and its membership, NHTSA recommends that states: 1) Provide licensing and registration procedures, 2) Require proof of financial responsibility in the form of insurance or surety-bonds as a prerequisite to registration, 3) Consider how to allocate tort liability among AV owners, operators, passengers, manufacturers or other entities in the event of a crash, and 4) Determine which parties must carry motor vehicle liability insurance.13 Thus, as discussed in more detail below, it is imperative Florida follow NHTSA’s suggestions and implement laws that address these four broad topic areas, to ensure accident victims are adequately protected in an AV world.

III. U.S. House Passes The SELF DRIVE Act

A week before the NHTSA issued ADS 2.0, the House unanimously passed the country’s first major national AV bill.14 Titled the SELF DRIVE Act, if passed, the bill would result in a rapid influx of AVs exempt from traditional auto safety standards,15 and eliminate the patchwork of state regulations currently in place. Indeed, the SELF DRIVE Act explicitly prohibits states from implementing standards for the “design, construction, or performance of highly automated vehicles” unless the state regulation mirrors the national performance and safety standards.16 Those powers would be delegated to NHTSA. The Secretary of Transportation would have 24 months to come up with specific rules for “safety assessment certifications” and a year to define the specific performance and safety standards.17 What exactly will those regulations say? TBD. However, the SELF DRIVE Act does say that state legislatures will retain jurisdiction over “registration, licensing, driving education and training, insurance, law enforcement, crash investigations, safety and emissions inspections” and traffic management unless the law imposes an “unreasonable restriction on the design, construction, or performance of highly automated vehicles.”18 Of course, the lines demarcating whether a federal regulation encompasses (and in turn, preempts) a particular state regulation are sure to be heavily litigated down the road.

IV. U.S. Senate Hits a Speed Bump – The AV START Act

A similar bill was poised to hit the Senate floor for a vote before the New Year, but it ran into road blocks in 2017’s final weeks. Titled the AV START Act, the Senate bill contains much of the same language as its counterpart in the House.19 It would similarly preempt state governments from legislating on the “design, construction, or performance” standards for AVs,20 but provides for different rulemaking procedures in developing federal regulations.21 After riding the fast lane through the Committee on Commerce, Science and Transportation, concerns over broad language undermining basic safety requirements (such as airbags) kept the checkered flag from waving on the Senate AV legislation.22 There could also be lingering concerns about commercial trucks being omitted from the bill, like in the House version.23 Thus, after the speedy start, it looks as if federal AV legislation may be subject to the same legislative setbacks and delays the Beltway is accustomed to, with formal federal regulations looking less likely during the current administration.24 Regardless, the AV industry is moving too fast for the federal government to delay much longer. It is not a question of “if” federal AV legislation will pass, but “when.”

V. Is Federal AV Legislation Something to Be Concerned About?

The short answer is yes. For auto practitioners, one of the biggest concerns surrounding federal AV legislation is that it will lead to preemption of state tort claims brought against AV manufacturers in the event of a crash. | January/February 2018 | 21


Levels of Automation SAE Level


Narrative Definition

Execution of Steering and Acceleration/ Deceleration

Monitoring of Driving Environment

Fallback Performance of Dynamic Driving Task

System Capability (Driving Modes)

Human driver monitors the driving environment

0 1


No automation

The full-time performance by the human driver of all aspects of the dynamic driving task, even when enhanced by warning or intervention systems

Human driver

Human driver

Human driver


Driver assistance

The driving mode-specific execution by a driver assistance system of either steering or acceleration/deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task

Human driver and system

Human driver

Human driver

Some driving modes

Partial automation

The driving mode-specific execution by one or more driver assistance systems of both steering and acceleration/ deceleration using information about the driving environment and with the expectation that the human driver perform all remaining aspects of the dynamic driving task


Human driver

Human driver

Some driving modes

Automated driving system (“system�) monitors the driving environment

3 4 5

Conditional automation

The driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task with the expectation that the human driver will respond appropriately to a request to intervene



Human driver

Some driving modes

High automation

The driving mode-specific performance by an automated driving system of all aspects of the dynamic driving task, even if a human driver does not respond appropriately to a request to intervene




Some driving modes

Full automation

The full-time performance by an automated driving system of all aspects of the dynamic driving task under all roadway and environmental conditions that can be managed by a human driver




All driving modes

Source: Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems (J3016 Sept. 30, 2016), SAE International,

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AV technology is likely to increase the amount of liability assigned to a manufacturer;25 thus, if preemption immunizes AV manufacturers from state tort claims, it has the potential to completely close the courthouse doors to accident victims.26 Fortunately, for the time being, the proposed legislation does not appear to preempt tort claims against a manufacturer. The SELF DRIVE Act contains a liability savings clause, which states that compliance with federal standards does not equate to an exemption from liability at common law.27 The AV START Act contains similar savings language, with an additional provision preserving liability claims arising “under a State statute authorizing a civil remedy for damages or other monetary relief.”28 Nevertheless, practitioners should not get too comfortable; similar savings clauses have proved ineffective in the past. See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861, 869-70 (2000) (holding plaintiff’s negligence claim preempted where manufacturer met minimum federal standards and state tort law would have imposed a higher duty, despite savings clause in federal legislation that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law”). Thus, if anything, the recent federal activity on AVs should reinforce to auto practitioners that we need to get Florida’s AV legislation correct, and we need to do so now.

VI. Florida’s Current AV Law – The Wild, Wild South

In 2012, the Florida legislature passed a law authorizing licensed (human) drivers to operate AVs, at least “for the purpose of testing the technology.”29 Human operators were required to be physically present within the AV (unless the vehicle was being tested on a closed course), and the entity performing the testing was required to post a $5 million bond with the Florida Department of Highway Safety and Motor Vehicles (DHSMV) as proof of financial responsibility. Then, in 2016, a general transportation bill included amendments that permitted AVs to be operated on public roads by any licensed driver and eliminated the financial responsibility requirements.30 It passed with little fanfare.31 Under one reading of the law, human drivers are no longer required to be physically present in the AV while it is being operated in “autonomous mode” by engaging “autonomous technology.”32 “Autonomous technology” is defined as “technology installed on a motor vehicle that has the capability to drive the vehicle on which the technology is installed without the active control or monitoring by a human operator.”33 The language is so broad it could arguably encompass a brick being placed on an accelerator.

Most notably, the bills allow “fully autonomous vehicles,” which are defined as Level 4 or 5 AVs, to be operated without a licensed human operator inside or outside the AV. Further, the “automated driving system,” which is the “hardware and software that are collectively capable of performing the entire dynamic driving task of an autonomous vehicle on a sustained basis,” is deemed the “operator” of the vehicle while it is operating in “autonomous mode,” instead of the human. The obvious problem with the proposed bills’ language is all of our traffic laws are predicated on a human, with a license capable of being suspended, being held legally responsible for his/her actions behind the wheel. But if the automated driving system is the “operator,” who exactly is supposed to get the traffic ticket when the robot runs a red light? Worse yet, what happens when the robot inevitably causes a wreck and injures or kills someone? Who is going to be held responsible? The AV manufacturer? The software developer? Some hardware supplier? All of the above? It’s like trying to figure out who is to blame when your iPhone freezes while using a third-party app. Will AV manufacturers capture and preserve the data needed to prove your client’s case? Even if they do, will you be able to overcome claims of trade secret privilege and the like to discover the information? And who will be able to interpret what it means? Is every rear-end collision soft-tissue case going to turn into a product liability case requiring an investment of $250K+? The questions do not stop there. How do you compare the negligence of a robot and a human? And what standard will the robot be held to? Will the courts extend Florida’s dangerous instrumentality doctrine to hold an owner of an AV strictly liable for a negligent robot? And let’s assume that you can prove that an entity is legally liable. Will there be an available source of remuneration for your client? These are big, important questions, and neither HB 353 nor SB 712 provides any answers. But it is not an exaggeration to say that if these bills pass as presently drafted, there would be no barrier to a Chinese automaker using our roadways to beta-test its AV technology, kill a few kids in the process, and then leave the grieving parents without any viable means of holding the wrongdoers accountable. Although we have little choice but to embrace the AV technology, that doesn’t mean it can’t be done in a responsible manner.

The only real safety requirement is that the AV must have a system to detect “autonomous technology failure[s]” and then either require the operator to take control of the AV or bring the AV to a stop, if the operator is unable to do so.34

It will be up to the feds to regulate AVs’ “design, construction, and performance” to ensure they meet minimum safety requirements. But it is up to Florida to impose regulations that give accident victims a viable route to recovery when, not if, the robots cause accidents.

Some commentators have characterized Florida’s current AV law as being the “least restrictive” in the nation.35

At the very least, and in line with the NHTSA directives, our legislators should include the following provisions in any AV bill:

VII. Favorable AV Legislation – It Won’t Drive Itself

Two companion bills have been filed for 2018 — HB 353 (Fischer) and SB 712 (Brandes) — and are even more AV-friendly than the current law.

1. Level 4 AVs should only be deemed “fully autonomous” when operating within its intended “operational design domain” as defined by SAE International, because Level 4s are not “fully autonomous” under all conditions. | January/February 2018 | 23


2. The AV manufacturer should be deemed the “operator” of the AV operating in autonomous mode. That would allow the existing traffic laws to be modified to apply to a manufacturer and ensure that there is a legal entity that may be held civilly liable for accidents caused by a defective autonomous driving system. 3. As a precondition to registration and operation of an AV vehicle: a. The owner must carry mandatory liability insurance providing coverage for all potentially responsible parties at specified levels (depending on the type of vehicle); b. The AV manufacturer must demonstrate proof of financial responsibility by posting a surety bond of $5 million or more with the DHSMV; c. The AV must be equipped with an autonomous technology data recorder that captures and stores accident data, and then the manufacturer must provide such information to interested parties upon request; and d. The AV manufacturer must comply with reasonable registration requirements imposed by the DHSMV, like identifying the AV manufacturer and level of automation on the registration itself.

At the time of writing, it is unclear whether the legislators will incorporate any of these reasonable proposals into the draft AV legislation.


Rather than be consumed by our petty day-to-day squabbles with the insurance industry, we need to recognize that our greatest threat is coming from beyond the wall. The only way we will survive is to unite and fight together. The AAJ and FJA are the best, if not only, hope we have to protect the rights of those injured by AVs and save our auto practices in the process. Needless to say, both organizations are outmanned and outgunned by the powerful AV lobby, so it is time you join their ranks and get involved. Winter is definitely coming. The question is whether we will be ready to embrace it, or get caught out in the cold.


is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. He is an EAGLE member of the FJA, has served as the chair of the FJA Auto Insurance Committee since 2016, and is a FJA director at large for 2017-18. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels.

4. Owners and AV manufacturers should both be held liable for damages caused by bodily injury or property damage resulting from an accident involving an AV if, at the time of the accident: a. The AV was operating in autonomous mode; and b. The AV “failed to perform like a reasonably prudent human operator would under similar circumstances or failed to meet reasonable consumer expectations for its behavior and performance.”

See, e.g., The Terminator (Orion Pictures 1984); The Matrix (Warner Bros. 1999); I-Robot (20th Century Fox 2004). 2. See Alexandria Sage and Paul Lienert, GM plans large-scale launch of self-driving cars in U.S. cities in 2019, Reuters (Nov. 30, 2017), us-gm-autonomous/gm-plans-large-scalelaunch-of-self-driving-cars-in-u-s-cities-in2019-idUSKBN1DU2H0. 3. See Stephen Edelstein, Toyota will use the 2020 Tokyo Olympics to showcase self-driving cars, Digital Trends (Aug. 14, 2017), 4. See Matt Bubbers, Japan hopes to show off self-driving cars at 2020 Olympics, The Globe and Mail (Nov. 20, 2017), 36971226/. 5. See Matthew J. Belvedere, Ford aims for self-driving car with no gas pedal, no steering wheel in 5 years, CEO says, CNBC (Jan. 9, 2017), ford-aims-for-self-driving-car-with-no-gaspedal-no-steering-wheel-in-5-years-ceo-says. html?__source=Facebook. 1.

See Tim Higgins, VW, Hyundai Turn to Driverless-Car Startup in Silicon Valley, Wall Street Journal (Jan. 4, 2018), https:// 7. Leanna Garfield, Only 20% of Americans will own a car in 15 years, new study finds, Business Insider (May 4, 2017), http://www. 8. See Brady Dale, New York Makes Testing Self-Driving Cars as Painful as Possible, Observer (May 11, 2017), http:// 9. See Alex Davies, Self-Driving Cars Flock to Arizona, Land of Good Weather and No Rules, WIRED (Aug. 10, 2017), https:// 10. See Colin Dwyer, Department Of Transportation Rolls Out New Guidelines For Self-Driving Cars, NPR (Sept. 12, 2017), 6.

24 | January/February 2018 |

See Nat’l Highway Traffic Safety Admin., Automated Driving Systems 2.0: A Vision for Safety 21, https://www.nhtsa. gov/sites/ 13069a-ads2.0_090617_v9a_tag.pdf/, at ii. 12. See id. at 20. 13. See id. at 21, 24. 14. See SELF DRIVE Act, H.R. 3388, 115th Cong. (2017). 15. See id. at § 6. 16. Id. at § 3. 17. Id. at § 4. 18. Id. at § 1. 19. See AV START Act, S. 1885, 115th Cong. § 6 (2017). 20. See id. at § 3. 21. See id. at § 4. 22. See Melanie Zanona, Driverless car bill hits Senate speed bump, The Hill (Dec. 3, 2017), 362883-driverless-car-bill-hits-senate-speedbump. 23. Id. 24. See Sam Abuelsamid, U.S. Department of Transportation Issues Simplified Automated Driving Guidelines, Forbes (Sept. 12, 2017), 2017/09/12/u-s-department-of-transportationissues-simplified-automated-driving-guide 11.

lines/2/#43809aaf5789. 25. James M. Anderson et al., Rand Corp., Autonomous Vehicle Technology: A Guide for Policymakers xxii-xxiii (2016), reports/RR443-2.html. 26. See id. at 128-34. 27. See SELF DRIVE Act, § 3 (“Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.”) 28. AV START Act, § 3. 29. See §§ 316.85 and 316.86, Fla. Stat. (2012). 30. CS/CS/HB 7061 (2016). 31. See Laws 2016, c. 2016-239, § 12, eff. July 1, 2016. 32. See § 316.85(1), Fla. Stat. (2016); House of Representatives Final Bill Analysis, p.7, Bill/2016/7027/Analyses/h7027z1.TPS.PDF. 33. § 316.003(2), Fla. Stat. (2016). 34. § 319.145, Fla. Stat. (2016). 35. See, e.g., Amy Sherman, In Florida, no permit needed for driverless cars, Florida senator says, Politifact Florida (Dec. 28, 2016), statements/2016/dec/28/jeff-brandes/floridano-permit-needed-driverless-cars-florida-s/. | January/February 2018 | 25


Insurance Cases by Richard Benrubi

Failure to Comply with a Condition Precedent is Waived Where Not Plead as an Affirmative Defense with Specificity. Schoeck v. Allstate Ins. Co., So.3d , 42 FLW D2182 (Fla. 2d DCA 10-13-17). In 2009, Schoeck was injured while she was a passenger in a vehicle owned and driven by her father. Schoeck alleged in her complaint that the driver of another vehicle caused the collision in which she was injured but lacked liability coverage sufficient to fully satisfy her damages claims. At the time of the accident, Schoeck was covered by two uninsured motorists’ provisions, under her father’s Geico policy and her mother’s Allstate policy. The Geico policy provided $20,000 in UM coverage; the Allstate policy provided $25,000 in UM coverage. In 2013, Schoeck sued Allstate seeking UM benefits under its policy; the record before us does not disclose why Schoeck did not also file suit against Geico at that time. Schoeck alleged generally that all conditions precedent to maintaining suit against Allstate had been met or else had been waived. Allstate’s answer did not address that allegation directly, but “denie[d] the allegations in all Paragraphs pertaining to this defendant unless otherwise specifically admitted.” Allstate eventually moved for summary judgment, disclosing the existence of the Geico policy and requesting among other things that the court prioritize the Geico policy and reduce Allstate’s total excess exposure to $5,000. In support, Allstate relied on a statutory provision providing that insurers may write UM policies limiting an injured insured’s recovery to the highest UM limits afforded to any vehicle insured under that policy. See § 627.727(9)(c), Fla. Stat. (2015). Allstate argued that Schoeck would only be entitled to the highest limit from among all vehicles covered under both the Geico and Allstate UM policies. Since $25,000 was the highest limit available under the Allstate policy, and since Allstate was the excess carrier, Allstate asserted that its policy limit should be reduced by the highest available limit available under the primary Geico coverage, $20,000. The circuit court agreed, and it entered a preliminary order that found the Geico policy primary and the Allstate policy excess, and that limited Allstate’s maximum liability exposure to $5,000. Schoeck moved for reconsideration, urging that section 627.727(9)(c) only limits UM recovery to the highest limit applicable to a vehicle covered under the Allstate policy itself, and that there was no basis for “crediting” the excess carrier for proceeds owed by a primary carrier.

26 | January/February 2018 |

Schoeck also argued that Allstate had waived any argument relating to the “Other Insurance” clause because Allstate had not pleaded an affirmative defense seeking to preclude or diminish recovery in reliance on that clause. In its reply to the motion for reconsideration, Allstate for the first time argued that “a closer look” at its policy suggested that Schoeck had not satisfied a condition precedent contained in the “Other Insurance” clause — that she must fully exhaust all other sources of recoverable insurance before suing Allstate. Allstate also anticipated that the Geico limits were probably unrecoverable due to the statute of limitation. Allstate asserted that because Schoeck had failed to timely proceed against the primary Geico benefits, she was therefore precluded from recovering any excess coverage from Allstate. The circuit court again agreed with Allstate and entered a final summary judgment declaring that Schoeck’s claims against Allstate were barred for failure to meet a condition precedent. The court specified that “the primary Geico [UM] coverage which was available at the time of the automobile accident . . . had not been actually paid and is now unpayable,” and therefore Schoeck would be unable to proceed against Allstate. The court again found that even had such condition precedent been satisfied, Allstate’s maximum liability would have been reduced to $5,000 to account for the primary Geico proceeds. Schoeck appealed. The Second DCA agreed with the circuit court’s order insofar as this contract language was meant to impose a condition precedent to an action against Allstate. However, the court found Allstate waived this defense by failing to plead the issue with sufficient specificity, citing Florida Rule of Civil Procedure 1.120(c) which permits the satisfaction of a condition precedent to be alleged generally, while requiring a pleader to deny the performance or occurrence of a condition precedent “specifically and with particularity.” Allstate contended that it specifically raised the condition precedent in its seventh affirmative defense, which alleged that “any recovery should be reduced or barred to the extent of available insurance coverage ... available to any individual or entity which may be wholly or partially responsible for the damages alleged in connection with the subject matter of the incident described in the complaint.” The court found that although this allegation generically evoked other sources of insurance coverage, the underlined language limited the defense to coverage that was available to the instigating tortfeasor or tortfeasors and did not specifically allege that Schoeck failed to exhaust proceeds available to her from her father’s Geico policy. The court concluded that because Allstate failed to plead the affirmative defense of noncompliance with a condition precedent, it waived the defense. See Fla. R. Civ. P. 1.140(h)(1).

Trial Court Erred by Not Awarding Insured’s Counsel’s Hours While Working at a Prior Firm. Forthuber v. First Liberty Insurance Corp., So.3d , 42 FLW D2459 (Fla. 5th DCA 11-17-17). This case involves a first-party insurance dispute. The appellee/ insured was represented by three different law firms during the course of the proceedings below, although the same lawyer, Hewett G. Woodward, handled the case throughout the six-year dispute. Initially, Woodward worked for Latham, Shuker, Eden & Beaudine, LLP. He then switched to another law firm before starting his own firm. When Woodward left the Latham firm, the firm advised appellant in writing that he had two options: (1) hire Woodward to complete the case or (2) engage a different lawyer of his choosing. For reasons that are not in the record, the letter did not offer appellant the option of continuing with the Latham firm. The fee agreements between appellant and all firms were contingent on a successful outcome and required payment of the greater of a percentage of the recovery or a statutory reasonable fee. Appellant signed and returned the letter to the Latham firm, indicating his intent to continue with Woodward as his attorney. The Latham firm then filed a notice of charging lien and subsequently obtained court permission to withdraw as appellant’s counsel of record. The trial court concluded that the Latham firm had forfeited or waived its entitlement to a fee by withdrawing from appellant’s representation before the occurrence of the contingency. This ruling was apparently not challenged by the Latham firm and is conceded as correct by the parties to this proceeding.

After appellant and appellee settled the underlying dispute, appellee agreed that appellant was entitled to a reasonable fee. It contended, however, that the trial court should disregard the 247.2 hours logged by Woodward while he was employed by the Latham firm because that firm had forfeited its fee. The trial court agreed. Accordingly, it refused to consider whether all or any portion of those 247.2 hours were reasonably incurred and could be included in its determination of a reasonable fee under the statute. The insured appealed. In a case of first impression, the Fifth DCA held that the trial court erred in failing to consider these hours in its award of a reasonable fee “in favor of the insured” pursuant to section 627.428. The court began its analysis with a discussion of the applicable statute. The court noted that the plain language of section 627.428 clearly establishes that fees owed under the statute belong to the insured and not the insured’s attorney. Fortune Ins. Co. v. Gollie, 576 So.2d 796 (Fla 5th DCA 1991). Further, the court stated that the fee agreement between a lawyer and client, no matter how reasonable, does not control the amount of fees assessed against a third-party under a fee-shifting statute. The converse is also true. When a party is not contractually obligated to pay her lawyer, or is obligated to pay the lawyer less than market rate, the party may still recover a reasonable fee using the Rowe formula under a fee-shifting statute. See, e.g., Rogers v. Vulcan Mfg. Co., 93 So.3d 1058, 1061 (Fla. 1st DCA 2012) (prevailing party could recover fees even though paid by employer); Wright v. Acierno, 437 So.2d 242, 244 (Fla. 5th DCA 1983) (reasonable fee not limited to amount paid by city to salaried attorney); see also Aspen v. Bayless, 564 So.2d 1081, 1082 (Fla 1990) (fact that insurer paid costs did not preclude recovery under offer of judgment statute). | January/February 2018 | 27


The court noted that although there are circumstances where the contractual relationship between a lawyer and client might cap the fees that may be recovered under a fee-shifting statute, here, the fee agreements did not establish a cap because they contained “alternative fee recovery clauses,” under which appellant agreed to pay the greater of a percentage of the recovery or the statutory fee. Under this fee arrangement, the contractual agreement does not operate as a cap on statutory fees. In reinstating the trial court’s award of $350 per hour in fees, the Florida Supreme Court concluded that its prior precedents capping fees to the “fee agreement reached by the attorney and his client” did not apply to a fee contract containing an “alternative fee recovery clause.” Id. at 979, 983 (citation omitted). Applying these principles, the court concluded that the trial court should have considered all of the hours reasonably expended by all of appellant’s attorneys in its calculation of a fee to be awarded to the insured. Under the plain language of the statute and our controlling precedent, the court found that the entitlement to a reasonable fee is appellant’s right, not his attorney’s.

insurance policy covering only an antique automobile with restricted highway usage to provide uninsured motorist coverage for accidents not involving the antique.” American Southern argued that it was not required to provide uninsured motorist coverage for the accident because of the special nature of the collector vehicle and the language of the insurance policy. It also pointed out that Lentini’s policy had a reduced premium because the coverage was limited; only specific “collector” vehicles qualified for such coverage; the coverage limited the use of the vehicle; and the specific policy language limited the liability coverage by restricting the definition of an “insured.” The estate countered that Martin was wrongly decided, in contravention of both §627.727, Florida Statutes (2015), and Florida Supreme Court precedent interpreting its provisions.

Insurer Cannot Restrict UM Coverage in a Collector Vehicle Insurance Policy Unless It Obtains a Valid Statutory Rejection.

In Martin, the Second District concluded §627.727 does not apply to antique vehicle policies. The court found that while public policy strongly favors requiring uninsured motorist coverage, “the legislature has never intended to mandate class I, family-style uninsured motorist coverage in such a specialty policy.” The court distinguished Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1971) inasmuch as it dealt with “family coverage,” and noted that “such broad uninsured motorist coverage has never been legislatively required for motorcycles or other specialty recreational vehicles.” The Fifth DCA determined that the Martin court’s conclusion that UM coverage as delineated in §627.727 does not apply to antique vehicles is untenable as nothing in the statute excludes collector or antique vehicle insurance policies from its application. Rather, the statute explicitly states that “no motor vehicle liability insurance policy … shall be delivered or issued for delivery in this state … unless UM coverage is provided therein.” §627.727(1), Fla. Stat. (2015). The only exception to this rule is if the “insured named in the policy makes a written rejection of the coverage.” The court noted that Lentini did not reject uninsured motorist coverage; instead, he selected stacked uninsured motorist coverage under the collector vehicle policy. Moreover, although American Southern could have obtained Lentini’s informed consent to limit uninsured motorist coverage while occupying a vehicle for which uninsured motorist coverage was not purchased, see id. §627.727(9) (d), it is undisputed that it made no attempt to do so in this case. Accordingly, the court reversed the final summary judgment in favor of American Southern Home Insurance Co.

Lentini v. American Southern Home Ins. Co., So.2d , 42 FLW D2652 (Fla. 5th DCA 12-15-17). The issue presented in this appeal is whether a collector vehicle insurance policy that restricts coverage requires an insurer to provide uninsured motorist coverage for accidents not involving the collector vehicle. Michael Lentini purchased a collector vehicle insurance policy from American Southern Home Insurance Co. for his 1992 Chevrolet Corvette. In 2015, Lentini was involved in a fatal accident while riding his motorcycle. His estate sought uninsured motorist coverage for the accident under the collector vehicle policy. American Southern denied the claim. Lentini’s estate filed suit. In response, American Southern asserted that it was not required to provide uninsured motorist coverage because Lentini was not occupying the insured collector vehicle when the accident occurred. Specifically, the collector vehicle policy contained several limitations on the use of the collector vehicle and excluded uninsured motorist coverage “for bodily injury sustained ... [b]y an insured while occupying, or when struck by, any motor vehicle owned by that insured which is not insured for this coverage under this policy.” In addition, the definition of an “insured” under the policy endorsement specified that it applied to Lentini while occupying the “covered auto.” The policy also required Lentini to own a principal means of transportation insured by a separate policy; if he did not, then no coverage would apply to his collector vehicle. Both parties moved for summary judgment. American Southern relied on Martin v. St. Paul Fire & Marine Insurance Co., 670 So.2d 997, 998 (Fla. 2d DCA 1996), where the court held that §627.727, Florida Statutes (1992), does “not require a specialty

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The trial court opined that Martin appeared to conflict with §627.727 but concluded that it was bound to follow Martin because it was factually analogous to the instant case. The court entered final summary judgment in favor of American Southern. Lentini’s estate appealed.


is the founding partner of The Law Office of Richard M. Benrubi, P.A. and of counsel to Rosenthal, Levy, Simon & Ryles in West Palm Beach, and has over 25 years experience representing and counseling individual and corporate clients in the areas of insurance coverage, insurance bad faith, personal injury and wrongful death. He has been a Board Certified Civil Trial Lawyer since 1995 and has been named a Top Florida Lawyer annually since 2005. | January/February 2018 | 29




The Diabetes “Wonder Drug” that Causes Amputations by Tim O’Brien

In May of 2017, the United States Food & Drug Administration (FDA), issued a Drug Safety Communication for the Type 2 diabetes oral medication, Invokana®: “Based on new data from two large clinical trials, the FDA has concluded that the type 2 diabetes medicine canagliflozin (Invokana, Invokamet, Invokamet XR) causes an increased risk of leg and foot amputations. We are requiring new warnings, including our most prominent Boxed Warning, to be added to the canagliflozin drug labels to describe this risk.” 1 In the warning, the manufacturer of Invokana®, Janssen Pharmaceuticals, for the first time warned the public that the use of Invokana® could result in toe, foot, or even leg amputation. The addition of the amputation warning to the 30 | January/February 2018 |

Invokana® prescriber label adds another and perhaps most significant risk for patients and doctors to be worried about when prescribing or using Invokana® for the treatment of Type 2 diabetes. With Invokana® patients already burdened with the risk of acute kidney failure and a potentially fatal condition known as diabetic ketoacidosis, the addition of the amputation warning shows that Invokana® is a true “wonder drug”: i.e., one wonders why this drug is still on the market when medical evidence shows that it actually causes three of the major side effects of Type 2 diabetes that these medications should aim to prevent.

The History of the Invokana® Warnings

Janssen Pharmaceutical Companies of Johnson & Johnson succeeded in securing the FDA’s approval of Invokana® for marketing in the United States on March 29, 2013.2 Invokana® (Janssen’s trade name for the chemical, canagliflozin) was the first of a new line of Type 2 diabetes medications that, rather than potentiating or mimicking the body’s insulin to metabolize blood glucose (sugar) and use it as energy, use the kidneys to expel through urination excess blood glucose.3 By its second full year of release, Invokana® achieved blockbuster status (i.e., exceeding $1 billion a year in gross sales).4 At launch, the only adverse reaction the label warned about was genital and urinary tract infections.5 The original prescriber’s label was in place with only minor changes to the warning and adverse reaction language for over two years.6 Two years later, however, the FDA issued the first of what would become a string of Drug Safety Communications; the May 2015 Communication indicated that SGLT2 inhibitors like Invokana® may result in a life-threatening condition known diabetic ketoacidosis (“DKA”).7 Janssen did not issue an updated label warning of the risk of DKA until nearly seven months later in December 2015.8 Six months later, in June 2016, the FDA added acute kidney failure to the list of adverse effects that could result from Invokana® use.9 As a result, the Invokana® label received its second major safety update, this time adding a warning for acute kidney injury and renal impairment.10 The Invokana® label was updated again on August 17, 2016, to add an additional warning regarding fatal incidents of DKA among Invokana® patients.11 But this would not be the end of the safety issues with Invokana. On May 16, 2017, the FDA issued a Drug Safety Communication about the ability of Invokana® to cause toe, foot, and leg amputations.12 Two months later, on July 25, 2017, the Invokana label was updated to include a black box warning of the increased risk of amputations.13 In all, Invokana® has seen three major safety issues in its brief time on the market, none of which were warned about when the drug was launched.

The CANVAS Study and the Amputation Risk

When a pharmaceutical company first attempts to have an indication for marketing approved by the FDA, the agency relies upon an advisory committee to vote and give guidance to the FDA on whether the drug is approved and for what indication. The Advisory Committee is not an actual part of the FDA but, as its name suggests, serves in an advisory role to the FDA and to which the FDA typically defers (but is not required to).14 Many members of the Advisory Committee for Invokana® expressed significant concerns about the safety of the drug. The clinical trial data for Invokana® showed that there was an imbalance of cardiovascular adverse events: within the first 30 days of use, 13 of the subjects on Invokana had a heart attack or stroke versus

only one subject on placebo.15 Of the 15 members of the Advisory Committee, eight expressly voted that they were concerned about the cardiovascular safety of the drug.16 Nonetheless, the committee members voted 10 to five to recommend the drug’s approval.17 Two months later, the FDA approved Invokana® for marketing with the proviso that major post-approval studies be conducted to assess the cardiovascular risks as well as certain other outcomes.18 The post-approval studies were conducted as multiple arms of the CANVAS studies funded by Janssen.19 Published in The New England Journal of Medicine in June 2017, the results of the studies showed a small decrease in the risk of cardiovascular events but a doubling of the risk of foot and leg amputations.20 These amputation data ultimately compelled the FDA’s Drug Safety Communication and the resulting black box warning that soon followed. In the 2017 CANVAS study publication, it was revealed that those subjects assigned to the control group (i.e., the “placebo”) experienced 3.4 amputations per 1,000 patient-years whereas those subjects assigned to the treatment group (i.e., Invokana®) experienced 6.3 amputations per 1,000 patient-years, which, once adjusted for confounders, resulted in a hazard ratio of 1.97, or, more simply stated, a doubling of the risk.21 The publication authors revealed that the relative rate of amputation risk was the same for those patients taking Invokana® regardless of whether they had a prior history of amputation or peripheral artery disease versus no such history.22 In its Drug Safety Communication, the FDA summarized the results and advised the public: “Final results from two clinical trials — the CANVAS (Canagliflozin Cardiovascular Assessment Study) and CANVAS-R (A Study of the Effects of Canagliflozin on Renal Endpoints in Adult Participants With Type 2 Diabetes Mellitus) — showed that leg and foot amputations occurred about twice as often in patients treated with canagliflozin compared to patients treated with placebo, which is an inactive treatment.”23 The reference to “inactive treatment” is an important one as what this means is that Invokana® performed this poorly when compared to no active treatment for diabetes. So it is not as if Invokana® were in a head-to-head trial versus another active treatment such as metformin. Rather, these results are derived from Invokana® versus no treatment and, therefore, from the standpoint of risk of amputation, taking a “sugar pill” is safer for the diabetic than taking Invokana®. In Drug Safety Communications, the FDA very rarely will go so far as to affirmatively identify “X” drug as the “cause” of “Y” adverse effect. Instead, the FDA will use looser statistical references such as “X is associated with Y” or “incidents of Y have been reported in patients taking X” and then follow with a boilerplate caveat such as “causality has not been determined as of yet.” In the Invokana® amputation Drug Safety Communication, however, the FDA took the bull by the horns and said in no uncertain terms: “Based on new data from two large clinical trials, the U.S. Food and Drug Administration (FDA) has concluded that the type 2 diabetes medicine canagliflozin | January/February 2018 | 31


a massive mission, one would assume that the FDA has a large staff. That, unfortunately, is not so. The full body of the FDA employs fewer than 15,000, of which fewer than 4,000 are assigned to the FDA’s Center for Drug Evaluation & Research.27 As a result, it is the manufacturer as the “Sponsor” of the drug that at all times bears the responsibility for maintaining an accurate prescriber label. Package labeling must be revised by a sponsor to include a warning about a clinically significant hazard as soon as there is reasonable evidence of a causal association with a drug; the “causal relationship” does not have to be conclusively proven before the duty to warn attaches.28 In order to facilitate the sponsor’s compliance with the need to keep drug labels current, the sponsor may use the “Changes Being Effected” regulations to either add or strengthen a contraindication, warning, precaution, or adverse reaction, or to delete false, misleading, or unsupported indications for use or claims of effectiveness.29 (Invokana, Invokamet, Invokamet XR) causes an increased risk of leg and foot amputations.”24 While there was nothing about amputation risk in the Invokana® label before the Summer 2017 black box warning, a year earlier the FDA had seen disturbing interim clinical trial results that showed a similar increase in the risk of amputation resulting from Invokana® use.25 Janssen too had this interim clinical trial information as well as its own internal amputation adverse event data, but made the decision not to inform physicians and patients through the package label until compelled to do so by the FDA.

In the case of Invokana® and amputation, however, Janssen chose to wait until the underpowered FDA compelled the label change. In the meantime, countless more patients who, by taking Invokana®, thought they were taking positive steps to prevent the life-altering side effects of diabetes, were actually exposing themselves to higher risks of acute kidney impairment, diabetic ketoacidosis, and foot and leg amputation.


is a senior shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. He is board certified by the Florida Bar in civil trial practice. O’Brien regularly tries complex environmental and pharmaceutical mass tort cases. He currently is serving as the Court-appointed Executive Committee member overseeing Discovery for In re Invokana (Canagliflozin) Products Liability Litigation, MDL No. 2750 (D.N.J.). O’Brien received his B.A. with Honors from the University of Virginia in 1992. After graduating with Honors from the University of Florida Fredric G. Levin College of Law in 1995, O’Brien worked for two years as a law clerk for the Honorable William T. Moore, Jr., United States District Judge for the Southern District of Georgia, and shortly thereafter began his complex personal injury litigation practice with Levin, Papantonio.

The Duty to Warn

Contrary to the notion that the FDA “writes a drug label,” the FDA is a small agency with a massive public charge. As the FDA has written: “The Food and Drug Administration regulates more than 150,000 marketed drugs and medical devices. At any time, nearly 3,000 investigational new drugs are being developed.”26 With such

1. 3. 4. 01/26/16 Johnson & Johnson Press Release: “Johnson & Johnson Reports 2015 Fourth Quarter Results.” 5. 6. In March 2015, the label was changed to include additional information regarding genital mycotic infections. 7. 8. 9. 10. 11. 12. 13. https:/ 14. 2.

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Transcript, 01/10/13 Food & Drug Administration Center for Drug Evaluation & Research, Endocrinologic and Metabolic Drug Advisory Committee Meeting, pp. 163, 174-75. 16. Id. at 326-37. 17. Id. at 345-63. 18. Food & Drug Administration Center for Drug Evaluation & Research, Application No. 204042Orig1s000, 03/29/13 Summary Review, Division Director’s Memo, pp. 17-19. 19. Neal, B, et al. Canagliflozin and Cardiovascular and Renal Events in Type 2 Diabetes. New Engl J Med Aug 2017; 377(7): 644-57. 20. Id. 21. Id. 22. Id. at 649. 23. 24. Id. (emphasis added). 25. 26. 27. UCM301553.pdf 28. 21 CFR§ 201.57 ( c)(6)(i); 21 CFR §201.80(e) 29. 21 CFR 314.70 (c) (6) (iii) (A)-(C)




by Scott R. McMillen & Allison McMillen

Fourth District holds medical malpractice plaintiff should have been permitted to amend responses to requests for admission; reverses summary judgment for defendant. Clemens v. Namnum, So.3d , 42 FLW D2622, 2017 WL 6388627 (Fla. 4th DCA 1213-2017). In a medical malpractice suit based on a doctor’s alleged negligence, the plaintiff also sued a health care corporation, alleging that the defendant doctor “worked under the scope of agency of ” the corporation. Almost two years after filing suit, the plaintiff amended her complaint to add allegations that the corporation had been negligent in its selection and retention of the defendant doctor. The corporation moved to dismiss, arguing that the new allegations were time-barred because they did not relate back to the original complaint. In response, the plaintiff asserted that the original complaint had always been one for direct negligence on the corporation’s part, not vicarious liability. After the trial court denied the motion to dismiss, the corporation served a request for admission asking the plaintiff to admit she was not pursuing an agency claim against the corporation based on vicarious liability for the doctor. The plaintiff admitted that was true in her response, but obtained new counsel

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soon afterward, who realized the response had been a mistake. The new counsel moved to amend the plaintiff’s response to the request for admission. The corporation objected, and also moved to strike the original agency-related allegation from the complaint. The corporation argued that it had relied on the plaintiff’s initial response, and the plaintiff should be estopped from changing her position. At the hearing on the motions, the plaintiff pointed out that no trial date had been set and discovery was ongoing. She also stated that she would not oppose further discovery by the corporation on the agency issue, including having her witnesses deposed again. On appeal, the Fourth District noted the scarcity of case law about amending an admission when the error is not merely clerical, but the result of what the Court called an “intentional misstep.” However, it found, in other procedural contexts, courts generally do permit a subsequent attorney to correct a legal mistake made by a prior attorney, if the correction facilitates resolution of the matter on its merits. In the instant case, the Fourth DCA found, the correction was needed for the case to be resolved on its merits, and the corporation could not show it would be prejudiced. The Fourth DCA also explained that estoppel did not

apply in this situation, since that doctrine “requires that the party being estopped from taking a contrary position actually succeeded in its former position.” The Fourth DCA reversed and remanded, holding that the trial court should have permitted the amendment and denied the motion to strike. Second District quashes order denying defendant’s motion for determination of whether presuit affidavit from out-of-state expert complied with Chapter 766 requirements. PP Transition, LP v. Munson, So.3d , 42 FLW D2589, 2017 WL 6344797 (Fla. 2d DCA 12-13-2017). In a medical malpractice case based on alleged nursing negligence, the plaintiffs used a presuit affidavit from a neurologist in California to give an opinion on the nurses’ standard of care. After the suit was filed, the defendant hospital filed a motion to dismiss for failure to plead a claim, or for an evidentiary hearing on the plaintiffs’ compliance with Chapter 766 presuit requirements. Among other issues, the hospital argued that the California neurologist was not qualified as an expert witness in regard to Florida nurses. The trial court denied the hospital’s motion without an evidentiary hearing or any explanation. The Second District granted the hospital’s petition for writ of certiorari, holding that the hospital’s motion required, at the very least, an express finding by the trial court as to the plaintiffs’ compliance with presuit requirements.

“(6) A physician licensed under chapter 458 or chapter 459 who qualifies as an expert witness under subsection (5) and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff.”


is proud to be a second-generation plaintiffs’ attorney, working with her father Scott McMillen to represent victims of medical malpractice. She is a Director at Large on the Board of the FJA and the Treasurer of the Central Florida Trial Lawyers Association. McMillen is also on the Editorial Board of the Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers.


is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, and a past president of the Central Florida Trial Lawyers Association, the Orange County Bar Association, and the Legal Aid Society of the Orange County Bar Association. McMillen started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.

Authors’ Comment: Although the opinion did not make it clear, it seems likely that the hospital’s argument against the expert was based on §766.102(6), Florida Statutes, which states: | January/February 2018 | 35


Guardians of the Rail:

Who Is Monitoring Our Nation’s Guardrails? by Poorad Razavi & Leslie M. Kroeger

On November 1, 2016, 17-year-old Hannah Eimers was driving her father’s 2000 Volvo S80 on I-75 near Niota, Tennessee, when the car went off the road, traveled into the median, and hit a Lindsay X-LITE guardrail end terminal on the driver’s side. Instead of the guardrail end terminal telescoping back on impact or re-directing the vehicle, as it should, the guardrail end terminal penetrated the car, impaling and killing Hannah.

On October 26, 2016, just six days before Hannah was killed, the Tennessee Department of Transportation (TDOT) had removed the Lindsay X-LITE guardrail end terminal from its qualified products list, based upon concerns for potential long-term performance issues of the terminal’s telescoping W-beam slider assembly frictionreduction type system. The decision to remove the Lindsay X-LITE guardrail end terminal from the state’s qualified products list meant that TDOT would not replace or install new Lindsay X-LITE guardrail terminals. Unfortunately, over 1,000 X-LITE guardrail terminals were allowed to remain on the roads across the state. The same X-LITE guardrail system had already been involved in at least three other fatal crashes in Tennessee at the time of Hannah’s death. Later in 2016, TDOT made the decision to remove these guardrail end terminals entirely from roads where the speed limit is greater than 45 mph. The TDOT has started the process, but it is unclear how long such a massive overhaul project will take. Earlier that year, on July 2, 2016, 69-year-old Wilbert Byrd was killed on I-75 in Chattanooga, Tennessee, when, while a passenger in a 2015 Ford Explorer that his nephew was driving, the vehicle left the roadway and collided with a Lindsay X-LITE guardrail end. The two relatives were traveling from Detroit, Michigan, to attend a funeral in Georgia. Once again, the guardrail’s W-beams

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Testing and Approval Process

The large number of defective and potentially dangerous guardrails on our roads raises questions: why and how did this product get approved for American roadways? While the “why” answer is more complex, the “how” is much easier to describe. The United States government, through the Federal Highway Administration (FHWA) sets out testing criteria for guardrail systems. If a company provides passing results to the government, then the FHWA will inform individual states that Federal funding can be used for the installation of those systems. However, the testing criteria are minimal standards that are outdated by all measures due to the inherent inability of a publicly funded governmental program to keep up with state of the art technology. Unfortunately, individual state transportation departments (DOT) are left with the impression that FWHA approval is the gold standard, despite the reality that the standards are bare minimum criteria that fail to take foreseeable real-life scenarios into account.

Lindsay Corporation

We uncovered that the company that was performing the “independent” testing on the Lindsay X-LITE was in fact owned by Lindsay Corporation. Shockingly, the documentation of the test results submitted to the FHWA indicate that Lindsay appears to have cherry-picked specific test findings in order to obtain approval.

penetrated the vehicle, and traveled through the vehicle’s cabin. It entered through the center dashboard and exited the rear windshield. Over 60 feet of guardrail passed through the vehicle in a matter of seconds.

In addition, following nationwide publicity surrounding several lawsuits filed against Lindsay in June 2017, Lindsay has sought and received FHWA support for yet another similar guardrail design, the Lindsay MAX-Tension, on June 15, 2017. It is anticipated that this new design was also subject to the same self-testing and self-reporting as prior Lindsay products. It will be important to closely monitor the performance of this new rail throughout the country.

America’s Dangerous Roadways

Trinity Industries

Guardrails are installed along America’s roadways for the protection of motorists. Guardrails, if properly designed, keep vehicles from straying off the roadway and, when impacted at the end points, should absorb or dissipate energy from the crash and give way, rather than remaining rigid and potentially penetrating and spearing into the accident vehicle. But, unfortunately, there are tens, if not hundreds, of thousands of guardrails that will not achieve this purpose either due to poor design or improper installation. Hannah and Wilbert’s deaths were due to a new series of catastrophic failures pertaining to the X-LITE system. Specifically, when impacted, the end rail often fails to properly contain the telescoping rails, resulting in violent and deadly penetration of the impacting vehicle. According to the United States Department of Transportation Federal Highway Administration (FHWA), 29 states in the country have the X-LITE installed on state-owned roadways. There are approximately 14,000 X-LITEs nationwide; however, over 80 percent are concentrated in seven states: Maryland, Massachusetts, North Carolina, Tennessee, Texas, Virginia, and West Virginia.

As a part of our litigation against another guardrail industry giant, Trinity Industries, Inc., we found that Trinity covertly reduced the steel in their ET-Plus end rail terminal, resulting in violent deaths on the roadway due to failing guardrail end terminals. Following our litigation against Trinity, the ET-Plus was completely removed from all federally associated Qualified Products Lists for roadway use. Trinity was later ordered to pay $663,000,000 for its improper actions.1 See the previous discussion on this issue, “Deadly Roadways: Guideposts for Defective Guardrail Litigation,” published by Florida Justice Association, Fall 2013.

A Competitive Market with Little Oversight

The removal of the Trinity ET-Plus resulted in companies rushing to market to fill the vacuum of tens of thousands of ET-Plus units that were previously being sold. One of those companies was the Lindsay Corporation. They designed, marketed, and sold a completely new end rail concept. Prior end rails, such as the ET-Plus, ET-2000, and the SKT 350 used a feeder chute system whereby | January/February 2018 | 37

PRODUCTSLIABILITY to lead to proper telescoping, and instead results in rail segments penetrating through vehicles with lethal and deadly force.

A Call to Action

Families who have lost loved ones, and those of us fortunate enough to represent them, have attended multiple meetings with federal and state government officials and corresponded with multiple state DOT offices asking for these guardrails to be removed. Fortunately, some legislators around the country have been listening and have begun to initiate laws to remove the Lindsay X-LITE guardrails from their roadways. But the work will not be complete until every one of these has been removed from the roadways of our nation. We fear that people will continue to be injured and killed until this happens. A standard feeder chute system

an impact by a vehicle into the end terminal would result in the guardrail peeling out and coiling away from the vehicle through the end terminal chute. The Lindsay X-LITE system, however, was designed so that the guardrail beams would simply slide and telescope upon each other and all theoretically come to a stop at the black and yellow end terminal. Unfortunately, the reality is that the X-LITE often fails

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What Can You Do?

Whenever a roadway accident victim appears in your office, it is important to always assess the potential for a defective roadway claim. Whether the claim pertains to defective guardrails, a failure to implement a guardrail system, or general roadway defects, it is important to quickly assess these potential claims. Guardrails are typically repaired and/or destroyed shortly after an accident, and totaled vehicles can often be quickly sold at auction. It is therefore imperative to send out preservation requests once a potential claim

has been identified. It is also important to send out proper investigators to document the scene of the crash. A diligent attorney must also quickly evaluate the potential claims against any sovereign entity and comply with the appropriate notice requirements, as the time limitations for those claims are typically less than the typical personal injury or wrongful death claim. In states like Florida with progressive sunshine laws, it is also crucial to begin gathering information at the pre-suit stage, which can include Development Review Committee notes, traffic engineering studies, accident analysis, topographic images, etc. This will allow for the possible identification of additional defendants and/or claims. Roadway contractors and designers, much like in the automotive industry, habitually seek to shield themselves from liability by hiding behind their compliance with governmental testing standards. It is crucial to the welfare of our clients and to society as a whole that we properly implement various techniques to identify these defects and strategically maneuver through the industries’ various propagated defenses.


is a partner at Cohen Milstein, and a member of the firm’s Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Ms. Kroeger began her career as an assistant public defender and later became an assistant state attorney in Miami-Dade County. She now handles a variety of complex civil litigation matters both in the state of Florida and nationwide. Kroeger is the treasurer of FJA and the past-chair of FJA’s Women’s Caucus. She served on Florida Bar Association’s Professional Ethics Committee, and is past-president of the Martin County Chapter of the Florida Association for Women Lawyers. She is AV-rated by Martindale-Hubbell and is consistently recognized by Best Lawyers, Florida Super Lawyers, and Florida Trend’s Legal Elite.


is an attorney at Cohen Milstein, and a member of the firm’s Catastrophic Injury & Wrongful Death, and Unsafe & Defective Products practice areas. Razavi’s practice focuses on products liability, vehicle defects, roadway design and maintenance defects, vehicle accidents, chemical exposure, and negligent security. He received his J.D. from the University of Cincinnati College of Law. Razavi is a member of the Palm Beach County Bar Association and the Palm Beach County Justice Association. He has been named a “Rising Star” by Florida Super Lawyers and a “Legal Elite Up and Comer” by Florida Trend Magazine.

Sadly, this was recently reversed by an Appellate Court because it found that the U.S. government refused to acknowledge that it was defrauded by Trinity. See, United States ex rel. Harman v. Trinity Indus. Inc., 872 F.3d 645 (5th Cir. 2017). 1. | January/February 2018 | 39



NOTE: Recent cases may not be released for publication. Opinion based exclusively on “training and experience” is upheld despite a Daubert challenge. Defendant crashed his car into another, killing its five occupants. He was charged with vehicular manslaughter. He claimed he passed out and was not in control of his vehicle — which was traveling 128 miles per hour — at the time of the crash. The lead investigator testified there were no marks suggesting defendant braked before the crash. However, another investigator, Corporal Dooley, opined that the crush damage on the victims’ car “went downward in ‘an arc-type fashion’ which indicated the front end of the defendant’s car was dipping as it collided with the Lexus,” which was consistent with braking. Corporal Dooley was qualified to conduct crash investigations but couldn’t give his opinion within a reasonable degree of scientific certainty and could not cite any

studies supporting his opinion. The appellate opinion mentions no other testimony on the Daubert/Kumho factors such as whether his theory had been tested, the known or potential error rate, or whether it had been subject to peer review. When questioned on whether the difference in vehicle weights might account for Corporal Dooley’s observations, he responded, “I can’t see any type of issue with that but it just appears like I said this, I’m just testifying as to what this looks like to me.” The trial judge admitted the testimony noting that Corporal Dooley was taught this principle through his training and stating, “I do find that it’s not a pure opinion of the corporal but it’s instead based on training, experience, he’s got the expertise.” The appellate court, without analyzing or applying any specific Daubert factors, affirmed. Judge Taylor wrote a detailed and persuasive dissent. Kemp v. State, 2017 WL 6371164 (Fla. 4th DCA Dec. 13, 2017). Comment: Judge Taylor’s dissent includes a proper Daubert analysis. In addition to the points raised in the dissent, it is curious that the appellate court accepted the trial court’s conclusion that Corporal Dooley’s testimony was not “pure opinion” because it was “based on training [and] experience.” That is pure opinion by definition under Florida law. See, e.g., Marsh v. Valyou, 977 So.2d 543, 548 (Fla. 2007) (defining “pure opinion” testimony as opinion “based on [the expert’s] experience and training”); R.C. v. State, 192 So.3d 606, 609 (Fla. 2d DCA 2016) (“by adopting Daubert, the legislature made it clear that ‘pure opinion testimony,’ i.e., testimony based only on the personal experience and training of the expert, is no longer admissible”). The opinion notes that the constitutionality of the Daubert amendments was not challenged. As of January 2018, the opinion has not been released for publication. 911 call identifying defendant as the perpetrator of a crime qualifies as an excited utterance and is admissible to corroborate consistent in-court testimony. Defendant was accused of throwing a metal pipe at the victim’s car. The victim knew and recognized the defendant. Two minutes after the occurrence the victim called 911 and identified the defendant as the perpetrator. Defendant moved to exclude the statement as hearsay, but the trial court admitted it and allowed the victim to make the same identification in open court. The Second DCA affirmed its admission. Prior consistent statements generally are inadmissible as hearsay and cannot be used to corroborate in-court testimony. But if the statement meets an exception to the hearsay rule, it may be admitted as substantive evidence. The court held the 911 call qualified as an excited utterance, which is a statement made: “(1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.” Roop v. State, 228 So.3d 633 (Fla. 2d DCA 2017). Comment: The facts of this case made it a close call and one judge dissented. There is a healthy discussion of the elements required to prove the excited utterance exception.

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Printouts of data prepared for trial may be admitted under the business records exception even if they are not kept in the ordinary course of business. The trial court excluded as hearsay a payoff printout in a foreclosure case (which would have shown missed payments). The Third DCA reversed, holding “Printouts of data prepared for trial may be admitted under the business records exception even if the printouts themselves are not kept in the ordinary course of business so long as a qualified witness testifies as to the manner of preparation, reliability, and trustworthiness.” Deutsche Bank Nat’l Tr. Co. v. de Brito, 42 FLW D2383, 2017 WL 5163048 (Fla. 3d DCA Nov. 8, 2017). Comment: On its face this is difficult to reconcile with the requirement (acknowledged by the de Brito court) that in order to qualify as a business record one must show the document “was kept in the ordinary course of a regularly conducted business activity.” Id. at *2. The court cites to Cayea v. CitiMortgage, Inc., 138 So.3d 1214 (Fla. 4th DCA 2014), which includes an identical quote. However, reading Cayea clarifies the holding. In Cayea, the data was not prepared for trial — the data was kept in the ordinary course of business — only the printouts were prepared for trial. In other words, in the phrase “printouts of data prepared for trial,” the words “prepared for trial” refer to the printouts, not to the underlying data. Because the printouts merely reflect data maintained in the ordinary course of business they are admissible if properly sponsored by a witness. Compare with and distinguish from Coates v. State, 217 So.3d 1048, 1050 (Fla. 4th DCA 2017) (holding that a list of stolen items cobbled together just before trial from a security guard’s notes is unlike the computer printout cases and is inadmissible). “[A] witness can lay the foundation for business records of another company.” Bayview Loan Servicing, LLC v. Kay, 227 So.3d 779, 781 (Fla. 1st DCA 2017) (collecting cases). Permitting and zoning ordinances are irrelevant in a premises liability case. At least that’s how the defense brief may read in your next case. Plaintiff slipped on a greasy sidewalk outside a barbecue stand and sued the owner as well as the county. The trial court admitted evidence of ordinances “relating to inspections and permits of food establishments.” The trial court reasoned that the ordinances were relevant to constructive notice. Third DCA reversed, holding that these particular ordinances were irrelevant and would be relevant only in a case alleging the County’s failure to properly inspect restaurants (for which it would have sovereign immunity). Miami-Dade County v. Jones, 42 FLW D2382, 2017 WL 5162706 (Fla. 3d DCA Nov. 8, 2017). Comment: The case is limited to its unique facts and does not impact (or even mention) the long line holding that relevant ordinances, regulations and statutes may be used as standard-ofcare evidence, i.e., non-conclusive evidence of negligence. The holding here clearly is right on the facts as described.

“When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.” The trial court was reversed for permitting plaintiff’s counsel to call defendant’s corporate representative to the stand during trial and question him on the timing of defendant’s liability admission (along with other details into its investigation of the crash). The appellate court affirmed, holding this evidence irrelevant and taking plaintiff’s counsel to task for phrasing numerous questions in terms of “guilt” and “innocence” for negligence. TT of Indian River, Inc. v. Fortson, 2017 WL 6390381 (Fla. 5th DCA Dec. 15, 2017). If evidence of other crimes/bad acts is “relevant for any purpose the fact that it is prejudicial does not make it inadmissible.” Defendant was accused of homicide and the court admitted evidence of a subsequent murder attempt with the same weapon eight days after the murder at issue in the trial. Evidence of other crimes/bad acts is “relevant to prove a material fact in issue like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge.” It is inherently prejudicial, so prejudice is not a bar so long as the collateral act does not become “an impermissible feature” of the trial. Razz v. State, 2017 WL 5899852 (Fla. 4th DCA Nov. 29, 2017). Comment: Character traits and evidence of other crimes, wrongs or acts are inadmissible to prove propensity, i.e., that a party’s acts were consistent with his bad character. However, as noted in this opinion, other crimes, wrongs or acts are admissible if relevant to prove a material fact in issue (which are not limited to those listed in the opinion). The court noted the need for a proper limiting instruction. See also Beckman v. State, 42 FLW D1975, 2017 WL 3879292 (Fla. 3d DCA Sep. 6, 2017) (“Collateral crime evidence is admissible as relevant under section 90.402 of the Florida Statutes to show consciousness of guilt.”) | January/February 2018 | 41


“Adverse inferences are strong medicine.” Thus, “such instructions are reserved for circumstances where the normal discovery procedures have gone seriously awry.” The trial court in this mesothelioma case instructed the jury that if it found defendant’s failure to produce persons employed at its plant more than 30 years ago was unreasonable, and that their testimony would have been relevant, then it was permitted to infer such evidence would have been unfavorable to defendant. The appellate court disagreed, noting that a party must make “some reasonable efforts to contact retired employees if current employees cannot provide the information requested.” But mailing postcards to retirees who worked at a plant more than 30 years ago would be a “time-consuming effort with no guarantee of success” so that, absent a court order requiring the defendant to make such efforts, its failure to do so did not support the instruction given. Bechtel Corp. v. Batchelor, 2017 WL 6598822 (Fla. 3d DCA Dec. 27, 2017). Comment: The opinion also addresses the evidence required to demonstrate a defendant’s control over a premises so as to impose liability for failure to protect others from injury. Plaintiff produced a tremendous amount of evidence implying defendant’s control over the premises. The majority opinion and Judge Emas’s dissent discuss the evidence and guiding legal principles at length. “There are two types of authentication methods for admitting videotapes.” The first is through “pictorial testimony,” where a witness testifies based upon personal knowledge that the tape fairly and accurately portrays the incidents reflected in it (as one would authenticate a photograph). The second way to authenticate a videotape is through the “silent witness” method, which requires the court to consider: (1) evidence of the time and date of the video; (2) any evidence of editing or tampering; (3) the operating condition and capability of the equipment as it relates to reliability and accuracy; (4) procedures relating to the preparation, testing, operation and security of the equipment; and (5) testimony identifying the relevant participants depicted in the video. As applied in this case, there was a date and time stamp on the video; there was no evidence of tampering; and the security and reliability of the device was supported by a store manager’s testimony, so its admission was upheld. The court distinguished an earlier case where a surveillance video was excluded based on a private investigator’s incentive “to find something favorable to the party employing [the investigator].” Richardson v. State, 228 So.3d 131 (Fla. 4th DCA Sep. 27, 2017). Dismissal as a sanction for spoliation requires evidence showing the spoliation fatally prejudiced plaintiff. “Generally speaking, in the absence of willfulness or bad faith, dismissal — the harshest of all sanctions — is appropriate only when the movant presents evidence (e.g., expert testimony) demonstrating that its case is fatally prejudiced by its inability to examine the spoliated evidence.” Landry v. Charlotte Motor Cars, 226 So.3d 1053 (Fla. 2d DCA 2017). A directed verdict on permanency is appropriate if supported by unrebutted expert testimony. A directed verdict on

42 | January/February 2018 |

permanency based on expert testimony is allowed “except when (1) it is rebutted by another expert, (2) the testimony is impeached, or (3) other conflicting evidence is presented.” Absent one of these circumstances “the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant.” 21st Century Centennial Ins. Co. v. Thynge, 2017 WL 6541770 (Fla. 5th DCA Dec. 22, 2017) (quoting Wald v. Grainger, 64 So.3d 1201 (Fla. 2011)). Deposition misconduct may result in your expert being stricken. The trial court initially permitted R.J. Reynolds Tobacco Company to substitute one expert for another, but rescinded the order based on misconduct by RJR’s counsel at the expert’s deposition (including 235 objections in a 232-page transcript, coaching objections, and numerous inappropriate instructions to not answer questions). The Third DCA denied RJR’s writ of certiorari from the ruling. R.J. Reynolds Tobacco Co. v. Morales, 2017 WL 6598526 (Fla. 3d DCA Dec. 27, 2017). A witness’s misleading statements regarding the dates of prior convictions does not open the door to inquiry into the nature of those convictions. Under §90.610, impeachment by prior convictions is limited to whether there are prior convictions and how many there are. The cross-examiner is not permitted to inquire into the nature or circumstances of the convictions unless the defendant attempts to mislead the jury about the convictions. If that occurs, any further inquiry is limited to questions necessary to “dispel any misleading impression.” Thus, where a witness’s testimony erroneously implies he has not had convictions in the past six years, he opens the door only as to the dates of his previous convictions, not their nature or the circumstances surrounding them: “Opening the door is not an all-or-nothing concept. Rather, a court must consider ‘how wide’ the defendant opens the door.” In this instance, “the nature of appellant’s prior convictions was not necessary to negate or dispel any false or misleading impression,” so he should not have been questioned in that respect. Farr v. State, 42 FLW D2410, 2017 WL 5171365 (Fla. 4th DCA Nov. 8, 2017). The trade secret privilege in §90.506 and the two-step inquiry into trade secret challenges are discussed in two recent cases. See Niagara Indus. v. Giaquinto Electric, 2017 WL 6032582 (Fla. 4th DCA Dec. 6, 2017) and Keller v. Healthcare-IQ, Inc., 2017 WL 5759039 (Fla. 2d DCA Nov. 29, 2017).


is a shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. A former federal law clerk and research assistant to Charles Ehrhardt, he received his J.D. with highest honors from Florida State University in 2002, where he served as Senior Articles Editor of the FSU Law Review. He focuses on trial work with a current emphasis on the Engle progeny tobacco litigation. | January/February 2018 | 43


Delaying Summary Judgment Hearings Due to Incomplete Discovery – Not Automatic by Roy D. Wasson

A. Introduction

For several years trial lawyers have regarded the first setting of a summary judgment hearing as a flexible deadline. Trial judges throughout the State of Florida would routinely excuse us from having to file evidence opposing summary judgment motions before, or even at the time of, the first scheduled hearing. If we weren’t ready to demonstrate a genuine factual issue by the time of that first scheduled hearing, all we had to do was argue: “Discovery is Incomplete.” Some of us got a little lazy, relying on appellate decisions that made it sound like we could always delay a summary judgment hearing, like this one: “Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery.” Crowell v. Kaufmann, 845 So.2d 325, 327 (Fla. 2d DCA 2003). More recently, the broad generalities about summary judgment being improper where any discovery remained outstanding gave way to a requirement that the non-movant demonstrate what facts they expect to uncover in discovery, and to show how those facts would be “material” in the sense of precluding judgment as a matter of law. Further, even the existence of assumedly material facts that more discovery could yield is no longer enough to require trial courts to continue the hearing. A plaintiff opposing summary judgment must establish both an inability to have previously uncovered those material facts, and that such inability resulted from interference in the discovery process by the defendant, not any lack of diligence by plaintiff. If you want to delay a summary judgment hearing, even one set relatively early in the case, you need follow a careful four-step plan. You still can get the additional time you need, and finish needed discovery on the substance of the summary judgment issues, but you need to be careful. This article will teach the formula of success to those of you unaware that there was such a formula, and reminds the rest of you what you know, but have not always followed. Apply these simple principles in order to maximize your chances of delaying the hearing where you need to, and to make a record for 44 | January/February 2018 |

reversal if the judge should unfairly deny your request for more time to respond to the motion for summary judgment.

B. Step 1 – Unfinished Discovery Must Be Shown to Be Material

During much of the 1980s and 1990s, the mere fact that discovery was incomplete was often (perhaps even usually) sufficient ground to require that a summary judgment hearing be continued. Plaintiffs opposing a motion for summary judgment did not ordinarily need to demonstrate the specific evidence that a given interrogatory or deposition was expected to yield, much less convince the court that the hoped-for evidence would be enough to defeat summary judgment. E.g., Collazo v. Hupert, 693 So.2d 631 (Fla. 3d DCA 1997), in which the court held: “Because discovery was still pending, the trial court should not have entertained a motion for summary judgment until such discovery was concluded.” Brandauer v. Publix Super Markets, Inc., 657 So.2d 932, 933 (Fla. 2d DCA 1995); Sica v. Sam Caliendo

Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993); Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987); Danna v. Bay Steel Corp., 445 So.2d 704, 705 (Fla. 4th DCA 1984). It was the mere fact of outstanding discovery that precluded summary judgment under this body of law a few years ago, without any need to demonstrate that the evidence discovery was hoped to uncover what would (or even might) be enough to defeat the motion for summary judgment. See, e.g., Sica, supra, where the court reversed a summary judgment that had been entered while the deposition of a party’s representative was pending, refusing to accept the opposing counsel’s argument on harmlessness “because there is no way to determine what may or may not have been said during the course of the avoided deposition.” The Sica court also quoted from an earlier case that stood for the proposition that summary judgment cannot be granted in a case where there is any pending deposition that had been noticed: “In Danna v. Bay Steel Corp., 445 So.2d 704, 705 (Fla. 4th DCA 1984), this court held that if a deposition has been properly noticed and there is no protective order, nor one sought, the plaintiff is entitled to a deposition before his lawsuit is summarily disposed of.” Over time, however, opposing counsel got wiser and began arguing that the plaintiff’s unfinished discovery should not preclude entry of summary judgment, because that discovery was either not material to the motion for summary judgment or, if material, it was not likely to result in enough favorable relevant evidence to preclude summary judgment. The courts have followed suit and made it clear that the mere pendency of some discovery is not enough to continue the motion for summary judgment hearing; there must be a showing of what evidence might result from the discovery and that such evidence would render summary judgment erroneous. E.g., Periera v. Florida Power & Light Co., 680 So.2d 617, 618 (Fla. 4th DCA 1996) (“In order to be entitled to a continuance under Fla.R.Civ.P. 1.150(f ) the party opposing the motion for summary judgment should show … the existence and availability of additional evidentiary matter, what it is and its materiality …”) (emphasis added). Thus, if the incomplete discovery will not raise disputed issues of material fact, summary judgment may be properly granted. Osorto v. Deutsche Bank Nat’l Tr. Co., 88 So.3d 261 (Fla. 4th DCA 2012) (“if the incomplete discovery will not raise future disputed issues of material fact, summary judgment may be properly granted”); Estate of Herrera v. Berlo Indus., Inc., 840 So.2d 272, 272 (Fla. 3d DCA 2003) (holding that summary judgment is proper where “future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling”). This first message is clear: to avoid summary judgment when discovery is incomplete, proffer what the expected answers to that discovery would be, and inform the court how that evidence would create genuine issues of material fact, requiring denial of the motion for summary judgment.

C. Step 2 – Don’t Hold Discovery in Reserve to Delay Motion for Summary Judgment

Although a showing of the expected content of unfinished discovery responses and the materiality thereof is necessary to warrant a continuance of a motion for summary judgment hearing, such a showing alone is not sufficient. The court must find that the party opposing the motion for summary judgment genuinely seeks the discovery and is not merely using incomplete discovery as a pretext for delay. “This rule is meant to allow a party enough time to conduct discovery and develop the facts in order to oppose a motion for summary judgment. It does not, however, allow a party to defer pretrial discovery for years and then attempt to shoehorn it into a brief period before the hearing on the motion.” Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37, 40 (Fla. 3d DCA 2008). Counsel opposing a summary judgment motion may not manipulate court schedules by holding back discovery requests or delaying depositions, just in case the opposing counsel is planning a motion for summary judgment. “Absent a non-moving party’s demonstration of diligence, good faith, and the materiality of the discovery sought to be completed, a trial court cannot be faulted for denying a motion to continue a long-scheduled hearing on the motions for summary judgment.” Vancelette v. Boulan S. Beach Condo. Ass’n, 229 So.3d 398 (Fla. 3d DCA 2017). “[A] fter a motion for summary judgment is filed and scheduled, non-moving parties cannot thwart the summary judgment hearing by initiating discovery.” Smith v. Smith, 734 So.2d 1142, 1144 (Fla. 5th DCA 1999). Even if a party is not deliberately avoiding the completion of discovery, the timing of discovery requests shortly before a motion for summary judgment hearing makes it appear that the “outstanding discovery” argument is just a pretext. By way of example, in affirming the denial of a continuance of the motion for summary | January/February 2018 | 45


judgment hearing, the court in Periera v. Florida Power & Light Co., 680 So.2d 617 (Fla. 4th DCA 1996) expressed skepticism at the plaintiff’s sincerity about the need for further discovery, as follows: “The outstanding discovery about which plaintiff complains was not initiated until three days before the summary judgment hearing. The trial court did not, therefore, err in refusing to continue the summary judgment hearing.” Id. at 618. This second lesson is to avoid the “pretext” claim by propounding all discovery that is imaginably necessary, and well in advance of a motion for summary judgment. If it is all answered fully by the time of that motion for summary judgment, the motion can be argued on its merits. If, on the other hand, that discovery has not been fully and fairly provided by the time a motion for summary judgment is filed by the opposing counsel, opposing counsel then move to the third element of the analysis: casting the blame for the lack of timely responses.

D. Step 3 – List the Defendant’s Discovery Delays and Obstructions

As demonstrated above, you should send out discovery requests as early as possible, and set depositions before learning that the opposing counsel is moving for summary judgment. If you set depositions and send out interrogatories and document requests early in the case, but the defendant delays responding and forces you to cancel and reset depositions, that is the very type of situation where a continuance of the motion for summary judgment can and should be granted. You should be prepared to document in detail the defendant’s delaying tactics and failure to comply with discovery deadlines, in order to maximize your hopes of continuing the motion for summary judgment hearing due to such delays. In Giroux v. Ronald W. Williams Constr. Co., 705 So.2d 663, 66465 (Fla. 1st DCA 1998), the court reversed a summary judgment for defendant, holding that “Giroux’s affidavit demonstrates his inability to complete discovery, his efforts to accomplish discovery, and that failure to complete discovery was not due to inaction on his part, but rather to the conduct of Williams Construction in failing to file answers to interrogatories.” Demonstrate your client’s diligence to the trial court, and you are one easy step away from avoiding a hearing on the merits of the motion for summary judgment.

E. Step 4 – Support Motion for Continuance with Your Affidavit

A frequent (and often fatal) mistake many trial lawyers make in opposing a motion for summary judgment is that — instead of filing their own affidavit to provide evidentiary support for the need for further discovery — counsel merely argues at the hearing that additional discovery remains to be taken. Subsection (f ) of Fla. R. Civ. P. 1.510, the rule on summary judgment procedure, expressly requires a factual showing (i.e., verified or under oath) on the issue whether the motion for summary judgment hearing

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should be rescheduled because additional investigation and discovery is needed. Mere unsworn argument of counsel is not enough, as held by the First District: In order to be entitled to a continuance under Fla.R.Civ.P. 1.510(f ) the party opposing the motion for summary judgment should show by affidavit the existence and availability of additional evidentiary matter, what it is and its materiality, what steps have been taken to obtain it, and that failure to have obtained such evidence sooner did not result from inexcusable delay. McNutt v. Sherrill, 141 So.2d 309 (Fla. 3d DCA 1962). Accord, CIA Ecuatoriana De Aviacion v. U.S. and Overseas Corp., 144 So.2d 338 (Fla. 3d DCA 1962). Here, the motion for continuance was unverified, no affidavit supporting the motion was filed, and the requirements listed above were not met. Clearly, DeMesme failed to bring himself within Rule 1.510(f ) and therefore had to rely upon the discretion of the trial court. DeMesme v. Stephenson, 498 So.2d 673, 676 (Fla. 1st DCA 1986) Do not rely upon your unsworn representation about the discovery you need to oppose summary judgment. “In order to be entitled to a continuance under Fla.R.Civ.P. 1.150(f ) the party opposing the motion for summary judgment should show by affidavit the existence and availability of additional evidentiary matter, what it is and its materiality, what steps have been taken to obtain it, and that failure to have obtained such evidence sooner did not result from inexcusable delay.” Giroux v. Ronald W. Williams Constr. Co., 705 So.2d 663, 664-65 (Fla. 1st DCA 1998) (emphasis added). This last step is easy, but one you should never forget.

Civil Procedure Case Summaries Ninety-Day Period for Serving PFS Starts With Service Upon CFO. Rule 1.442(b), Florida Rules of Civil Procedure, states that a “proposal [for settlement] to a defendant shall be served no earlier than 90 days after service of process on that defendant.” In Markovits v. State Farm Mut. Auto. Ins. Co., No. 1D17-1623; 2018 Fla. App. LEXIS 131 (Fla. 1st DCA 1-3-18), a suit against State Farm for UM benefits, service of process was effectuated upon Florida’s Chief Financial Officer (“CFO”). “State Farm was served with the proposal 91 days after service of the complaint on the CFO but 88 days after the complaint was forwarded by the CFO to State Farm.” Id. at *2. The court held that the effective date for triggering the ninety-day period was the date of receipt of the summons and complaint by the CFO, not the date the CFO forwarded the complaint to State Farm. Error to Sever Counterclaim from Main Claim for Separate Trials. Fla. R. Civ. P. 1.270(b) provides that a “court in furtherance of convenience or to avoid prejudice may order a separate trial of any claims, cross claims, counterclaims, or third-party claims, or of any separate issue or of any number of claims, cross claims, counter claims, third-party claims, or issues.” However, Florida courts have held that “[i]t is improper to sever a counter-claim and affirmative defenses from the plaintiff’s claim, when the facts underlying the claims of the respective parties are inextricably interwoven.” Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022 (Fla. 1st DCA 1998). In U.S. Bank Nat’l Ass’n v. Tranumn, No. 1D16-4911; 2018 Fla. App. LEXIS 7 (Fla. 1st DCA 1-2-18), a mortgage foreclosure case, the plaintiff bank obtained a judgment of more than $80,000.00 in its mortgage foreclosure case, but then successfully sought certiorari review to have that judgment quashed. The First District held that the trial court erroneously severed the defendants’ counterclaims and affirmative defenses, resulting in irreparable harm to the bank. Rule 1.310(b)(6) Requires Corporate Defendants to Attempt to Locate Retired Employees. The subject rule requires a corporation to produce representatives to testify “about matters known or reasonably available to the organization.” This rule places a duty on the corporation to affirmatively prepare its representative “to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Carriage Hill Condo. Inc. v. JBH Roofing & Cronstrs., Inc., 109 So.3d 329, 334 (Fla. 4th DCA 2013). In Bechtel Corp. v. Batchelor, No. 3D16-2624; 2017 Fla. App. LEXIS 19759 (Fla. 3d DCA 12-27-17), the court reversed the trial judge’s ruling imposing the sanction of an adverse inference jury instruction because of the employer’s failure to mail postcards to retired employees, including some who had retired more than 30 years before. Noting that, “[o] bviously, a party’s duty under rule 1.310(b)(6) includes some reasonable efforts to contact retired employees if current employees cannot provide the information requested,” the court held that “[m]ailing postcards to locate retirees who had worked over thirty years ago and who could then be interviewed to prepare a corporate witness is a time-consuming effort with no guarantee of success. Absent a specific

court order to do so, we would not interpret a party’s responsibility to prepare a representative to extend so far, particularly here, where the deposition is noticed to take place only a few weeks before trial when there is reduced time for such a large effort.” Id. at **14-15. Attorney’s Misconduct at Deposition Warrants Striking Of Witness. Following a mistrial for an unrelated reason, the defendant in an Engle progeny case obtained leave of court to substitute its addiction expert from the first trial with a new expert, Dr. Torres. Throughout the plaintiff’s deposition of Dr. Torres, defense counsel “made speaking objections or otherwise tried to influence Dr. Torres’s testimony,” including instructing the witness not to answer questions. On certiorari review, the appellate court approved the striking of defendant’s expert, rejecting the defense argument that the plaintiff also engaged in misconduct at the deposition and stating: “as we have done in the past, we decline to adopt the practice of allowing one party’s misconduct to wipe the slate clean of the other party’s misconduct …” R.J. Reynolds Tobacco Co. v. Morales, So.3d , 42 FLW D63 (Fla. 3rd DCA, 12-27-2017. Rehearing Rule Applies to Dismissal for Failure to Prosecute. Following a dismissal for failure to prosecute, the plaintiff filed a motion for rehearing under Fla. R. Civ. P. 1.530, arguing that the dismissal was improper because there had been record activity within the 10-month period prior to the Notice of Lack of Prosecution. In McGarth v. Martin, No. 3D15-1821; 2017 Fla. App. LEXIS 17729 (Fla. 3d DCA 11-29-17) the defendant “responded by arguing that rule 1.530 did not apply to dismissals for lack of prosecution. The trial court agreed, stating that ‘the 1.530 analysis does not apply because this was not a non-jury trial, nor was it a summary judgment.’” Id. at **1-2. On appeal, the Third District rejected the defendant’s argument, holding that the rehearing rule was applicable to dismissal for failure to prosecute, not just to bench trials and summary judgment proceedings. Trial practice and the rules pertaining to our profession are constantly evolving, and it is a full-time job to keep up with the procedures we all need to follow to recover decent verdicts and keep them on appeal. We can never avoid all the pitfalls of our state and federal civil procedural rules and trial practice. All we can do is: Keep Tryin’!


is board certified in appellate practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE patron, a former member of the FJA board of directors, a fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Wasson is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, the Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section. | January/February 2018 | 47


MISLEADING CLOSING ARGUMENTS – ISSUES AND REMEDIES by Philip M. Burlington, Barbara Green and Christopher Carlyle

Obviously, it is unnecessary to write an article advising you of the case law stating that it is improper to mislead the jury in closing argument as to either the law or the evidence. However, there are some cases holding that some arguments that do not directly address the law are deemed to mislead the jury because they improperly shift or elevate the opponent’s burden of proof. Those cases will be discussed in this article as well as the various remedies available when an opponent makes misleading remarks about the law or the evidence.

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Comments that Mislead the Jury as to the Opposing Party’s Burden of Proof

The simplest example of improper comments that mislead the jury as to the burden of proof occurs in criminal cases. There is a long line of cases holding that it is improper for a prosecutor to argue to the jury that if they believe the defendant lied then they should return a guilty verdict. See Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998). The rationale is that the conviction must be based on the jury’s finding that

the state proved each element of the crime beyond a reasonable doubt; and a mere rejection of the defendant’s credibility is not sufficient. See also Simbert v. State, 226 So.3d 883 (Fla. 4th DCA 2017) (and cases cited therein). In a civil context, the cases addressing arguments that improperly characterize the opponent’s burden of proof are a little more complex. In Saunders v. Dickens, 151 So.3d 434 (Fla. 2014), a medical malpractice case, a neurologist was sued for an alleged failure to timely diagnose and treat cervical cord compression, primarily the failure to order a cervical MRI. At trial, defense counsel argued that the plaintiff had failed to prove causation relying on the deposition testimony of the subsequent treater, a surgeon, who said he would not have done anything different if the neurologist had ordered a cervical MRI. The jury returned a defense verdict, but ultimately the Supreme Court reversed based on that closing argument. In Saunders, the Supreme Court determined that the defendant’s argument was improper because the plaintiffs were only required to establish that the neurologist’s care fell below that of a reasonably prudent physician and was causally related to the plaintiff’s injuries. Id. at 442. The court held that the defense counsel’s argument had misled the jury because it consisted of “improper burden-shifting statements.” Id. In Saunders, the harm was compounded because the surgeon’s deposition was taken while he was still a defendant in the case with a motive to deny wrongdoing and avoid liability, yet the plaintiffs were not able to inform the jury of that since the surgeon settled prior to the trial. Based on those circumstances, the Florida Supreme Court ordered a new trial. In Cohen v. Phillip Morris USA, Inc., 203 So.3d 942 (Fla. 4th DCA 2016), the Fourth District determined that plaintiff’s counsel had made improper comments in closing to the effect that COPD was a distinct medical condition from emphysema. The court noted that those conditions were treated as essentially synonymous on the verdict form (without objection), being designated simply as “COPD/Emphysema.” The Fourth District determined that the statements in plaintiff’s closing “constituted in attempt to elevate the defendant’s burden” on their statute of limitations defense, and therefore could have misled the jury. 203 So.3d at 948. Saunders and Cohen may seem very fact specific, but you need to be alert for improper comments of defense counsel that mischaracterize your burden of proof. These could include closing arguments telling the jury that in order to prevail the plaintiff must prove x or y, when that is not true. Those types of argument mischaracterize or elevate your burden of proof and should not be permissible.

Remedies for Misleading Statements Regarding the Evidence

When a party objects during closing argument and claims there has been a misstatement of the evidence, the customary remedy is for the court to instruct the jury that it is to rely on its collective memory. E.g., Randolph v. State, 556 So.2d 808, 809-10 (Fla. 5th DCA 1990).

While there are usually prudential considerations that justify such a limited response by the court, the truth of the matter is that is not a ruling on the objection (which can create preservation issues), and it simply puts the issue back in the lap of the jury. That response also assumes that the jury’s collective memory is impervious to improper characterizations of the evidence in closing argument. On at least two occasions, Florida appellate courts have determined that this customary response was inadequate to cure misstatements of fact in a closing argument. In Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3d DCA 2015), review granted, No. SC15-1924, 2016 WL 9454202 (Fla. Oct. 10, 2016), the Third District reversed a judgment on numerous grounds, including plaintiff’s closing argument. The Third District concluded that plaintiff’s counsel had misrepresented an expert’s testimony in closing argument, and that the trial court’s use of the customary remedy had been inadequate. The court stated (176 So.3d at 327): This argument by plaintiffs’ counsel materially altered the facts in evidence and materially prejudiced the jury. Rather than correcting the error, the trial court failed to sustain Dr. Vargas’s timely objection and instead merely told the jurors to rely on their own recollection of the evidence presented at trial, which had lasted several weeks. In Vargas, the Third District did not specify what the trial court’s response to the objection should have been, but simply reversed for a new trial. In Linic v. State, 80 So.3d 382 (Fla. 4th DCA 2012), the Fourth District determined that the prosecutor had relied on non-record facts and improper inferences in his closing argument on multiple occasions. In reversing, the court stated that “the trial court should have affirmatively rebuked the offending prosecutor … and specifically instructed the jury, contemporaneously thereto, that the comments made during closing arguments do not constitute evidence.” Id. at 393. In one criminal case, the Third District found no harmful error when a trial court commented on the evidence after the prosecutor objected to defense counsel’s misstatement of the evidence in his rebuttal closing. Evans v. State, 627 So.2d 96 (Fla. 3d DCA 1993). While noting that judges should generally refrain from commenting on the evidence, the Third District noted that the prosecutor had no opportunity to rebut defense counsel’s misstatement and the evidence the trial court referenced was undisputed. So, while there is some authority for a trial court addressing evidence in response to a misstatement in closing argument, the circumstances justifying it must be compelling. Another potential remedy for factual misstatements in closing arguments is to have a readback of the testimony that has been mischaracterized. Currently there is no appellate precedent directly addressing that remedy, but it is a common-sense response if obvious misstatements can be identified. In civil cases, the decision to allow the readback of testimony is within the sound discretion of the trial court. See Broward County School Board v. Ruiz, 493 So.2d 474, 479-80 (Fla. 4th DCA 1986). | January/February 2018 | 49


Therefore, perhaps you should consider, at the time of your objection to your opponent’s misstating of the evidence, making a request that the appropriate portion of the testimony be read back to the jury. If that request is unavailing in your rebuttal argument, address misstatements and inform the jury of their right to have portions of trial testimony read back to them. A trial court is not permitted to inform jurors that they are prohibited from requesting a readback of testimony, Johnson v. State, 53 So.3d 1003 (Fla. 2010); and there is a Florida Standard Jury Instruction to be used when a jury makes such a request, see Fla.Std.Jur.Instr. 801.2. However, one limitation on the trial court’s discretion is that the readback should not be so truncated that it puts unfair emphasis on one party’s version of events. See Gormady v. State, 185 So.3d 547, 551 (Fla. 2d DCA 2016). So, consider the readback option but exercise caution as there is currently no case on point directly authorizing it. Finally, in addressing remedies for your opponent’s misstatement of the evidence, the option of engaging in “self-help” by directly calling out the misstatements in your rebuttal is, of course, appropriate, but your comments need to be tempered. Florida appellate courts have repeatedly expressed their frustration with ad hominem attacks on opposing counsel for supposedly misleading the jury. See R.J. Reynolds Tobacco Co. v. Gafney, 188 So.3d 53, 58 (Fla. 4th DCA 2016); Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409, 410-11 (Fla. 3d DCA 1995). So, do not hesitate to take issue with misstatements of fact in your rebuttal closing, but do not accuse your opponent of intentionally misleading the jury (even if it is true), or use other intemperate language that may cause your closing argument to be improper.

Remedies for Misstatements of the Law

When an attorney misstates the law in closing argument, the most common response is for the trial judge to instruct the jury that it will provide the jury the law to rely upon in deciding the case. As with instructing the jury to rely on their collective memory, this can be an ineffective response. Many trial judges are now giving the substantive closing jury instructions prior to closing arguments, and thus there is no opportunity for the court to correct any misstatements of law in the prepared instructions. Also, while jury instructions may be clear and easily understandable to lawyers and judges, to jurors they are often perplexing and impenetrable. Therefore, it may be overly optimistic to assume that a jury will be able to correct a misstatement of law made in closing argument upon hearing or reading the final jury instructions. In CSX Transportation, Inc. v. Whittler, 584 So.2d 579 (Fla. 4th DCA 1991), the court ruled that a misstatement of law in an expert’s testimony was sufficiently remedied by the accurate closing jury instructions. However, in Butler v. McDougal, 120 So.2d 832 (Fla. 3d DCA 1960), the court held that a misstatement of law in plaintiff’s opening argument was not cured by the accurate instructions of law given at the conclusion of the case, and therefore a new trial was mandated. 50 | January/February 2018 |

The most effective response to a misstatement of law in closing argument is a contemporary curative instruction. However, sua sponte instructions or hastily crafted statements of law can be risky. In Royster v. State, 643 So.2d 61 (Fla. 1st DCA 1994), the appellate court determined that the trial court’s “curative” instruction was “even less accurate” then defense counsel’s misstatement of the law in his closing. The court also noted that giving the instruction created the appearance that defense counsel was attempting to mislead the jury, which should also be a concern when fashioning a remedy. In Craft v. Kramer, 571 So.2d 1337 (Fla. 4th DCA 1990), plaintiff’s counsel made comments in his closing that were arguably inconsistent with the statute which states that the existence of a medical injury in itself does not create an inference or presumption of negligence on the part of the healthcare provider. See Fla. Stat. §766.102(3)(b). Defense counsel had requested a jury instruction incorporating that statute to be included in the final instructions, but that request had been denied. When plaintiff’s counsel made the arguably conflicting statements in his closing, the defendant reiterated the request for that instruction, but the trial court denied it. The Fourth District held that the refusal to give that instruction on the second request was error which mandated a new trial. See also City Provisioners, Inc. v. Anderson, 578 So.2d 855 (Fla. 5th DCA 1991) (misstatement by plaintiff’s counsel that if jury awarded too much money the judge can reduce it, but that if the jury did not award enough money the judge cannot increase it, required new trial on issue of damages). A failure to request a curative instruction accurately stating the law may also implicate preservation issues. In Powell v. Goldner, 483 So.2d 468 (Fla. 3d DCA 1986), plaintiff’s expert read an excerpt from the Florida Driver’s Handbook which was inconsistent with Florida law regarding the reciprocal rights of motorists and pedestrians. The defendants apparently objected to that excerpt being read, but the Third District held that the error was waived by the failure to request a jury instruction which could have cured the problem. The court stated in a footnote that the closing instructions included a generic instruction regarding the reciprocal rights of pedestrians and motorists, and noted that if the defense did not believe that instruction was sufficient to cure any misimpression on the part of the jury, “it was up to them to say so.” Id. at 469 n.2. Anticipating misstatements of law in your opponent’s closing is, of course, prudent, but the submission of a “preemptive” jury instruction on that subject will probably be futile. In R.J. Reynolds Tobacco Co. v. O’Hara, 282 So.3d 1168 (Fla. 1st DCA 2017), plaintiff’s counsel requested a jury instruction on the rationale that it would prevent defense counsel from making an improper closing argument. The trial court gave the instruction, and that ruling was challenged on appeal. The First District noted that jury instructions are not “designed to be used as preemptive shields to stave off a party’s ability to argue its case,” Id. at 1170, but ultimately determined that giving the instruction was harmless error.

It should also be noted that the direct approach of reading legal authorities in your closing to correct your opponent’s misstatements is not available. For almost 100 years, the Florida Supreme Court has been clear that counsel are not permitted to read such materials to the jury and that it is the function of the trial court to charge the jury with the law applicable to the case. See Tindall v. State, 128 So. 494, 498 (Fla. 1930); see also Jordan v. State, 176 So.3d 920, 928 (Fla. 2015).


And we conclude with a suggestion as to the manner of presenting your objections to the trial judge when your opponent has misstated the law or the evidence. Emotional appeals and finger pointing are not as persuasive as they feel at the time. Judges know that lawyers have an inexhaustible reservoir of righteous indignation, which they resort to with alacrity and, as a result, such displays are often viewed with skepticism. Moreover, the trial judge’s concern will most likely be whether the jury was misled and, if so, what is the proper remedy. Remember that getting your opponent chastised is a fleeting pleasure and of no real benefit to your client. So, our recommendation is to focus your objection on the nature and effect of the misstatements and the appropriate means for the court to remedy the problem.

John Romano’s


is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.


is Board Certified in Appellate Practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Carlyle is chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.


handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Green received her B.A. from the University of Florida in 1973 and her J.D. from the University of Miami in 1978. Active in the FJA since 1982, Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Association. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Association. Stalwarts Award for continuous contribution to the cause of justice.





March 20-23 John Romano’s Workhorse Seminar, Marriott’s Orlando World Center

June 20-23 Annual Convention The Breakers Palm Beach


August 1-3 Christian D. Searcy Voir Dire Institute Walt Disney World Swan and Dolphin

April 27 Collateral Sources Webinar


May 17 The Law & The Stethoscope; Medical School For PI Attorneys


August 2-4 Al J. Cone Trial Advocacy Institute Walt Disney World Swan and Dolphin | January/February 2018 | 51


JUROR NONDISCLOSURE: Subtleties of the Most Common Post-Trial Argument by Celene Humphries

Hands-down, the most common argument made by the losing party is that a juror did not disclose an important fact. It is also almost always lost. Here, I discuss the four areas where mistakes are common, and the subtleties you need to be aware of to protect yourself or, if necessary, undo a defense verdict. Squarely ask questions of venire panel: The first prong for proving juror nondisclosure asks whether a concealment occurred. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995). The critical point here is that information is considered concealed only if “the information is ‘squarely asked for’ and not provided.” Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000), citing Mazzouccolo v. Gardner, McLain & Perlman, M.D., P.A., 714 So.2d 534, 536 (Fla. 4th DCA 1998); see also Bernal v. Lipp, 580 So.2d 315, 316 (Fla. 3d DCA 1991). This means that the question propounded must be straightforward, and not reasonably susceptible to misinterpretation. Mitchell v. State, 458 So.2d 819, 821 (Fla. 1st DCA 1984); see also Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011). When answering this question, it is important to consider the “context in which that question was asked and the answers given….” McCauslin v. O’Conner, 985 So.2d 558, 562 (Fla. 5th DCA 2008); see also Tricam Industries, Inc. v. Coba, 100 So.3d 105, 113 (Fla. 5th DCA 2012).

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Two cases make this point. In the McCauslin case, counsel for the plaintiff asked the panel “[H]ave any of you ever been injured in any way, whether it be a car accident, a collision, a slip and fall?” McCauslin, 985 So.2d at 562. Sounds good, right? Wrong. The court held that “the question was broad and was asked in response to prospective Juror Glen’s comment that he and his wife were seriously injured in an automobile accident. Juror Glen said that he felt he could not be fair because of the severity of his prior injuries.” Id. The court went on to explain that the panel “may have assumed that the question was geared toward serious injuries that might affect their impartiality since such were the injuries that had generated the question. McCauslin’s counsel inquired two more times whether anyone else had been injured in a car accident, and each time, two more potential jurors answered affirmatively, discussing in detail the severity of their injuries.” Id. In Tricam Industries, the court examined “the context in which the trial court asked the jurors about their litigation history, coupled with the jurors’ responses” to determine that the information not disclosed was not squarely asked for. 100 So.3d at 112. In that case, the venire was asked if they had ever been sued and “all of the responses by the jurors were disclosures of prior personal injury suits.” Id. at 113. The Fifth District held that the questioning, coupled with the responses focused on personal injury suits, could

have reasonably led the juror in question to believe that her divorce and foreclosure lawsuits were not responsive (and, therefore, the information was not concealed). Id. In personal injury cases, a frequent topic of imprecise questions is insurance claim history. Many of the written questionnaires given to jurors just ask about prior “claims.” A venire panel member could easily assume that “claim” means a claim in a lawsuit, instead of a claim with an insurance company. See e.g., Birch, 761 So.2d at 35758 (noting that juror could easily have been confused about what was being asked concerning “lawsuits” where judge’s immediately prior question colored the definition the juror would have applied to the broad term). The best bet is not to rely on such a questionnaire question for this information. Be careful of mushy questions: Determining whether a venire question was straightforward, and not reasonably susceptible to misinterpretation is harder when the information “concealed” is a subjective opinion of a person, instead of an objective fact (like whether someone was in a car accident). Currently, there is very little case law addressing this circumstance. One rare example is Wilson v. State, 608 So.2d 842 (Fla. 3d DCA 1992), in which a juror had said that she could be impartial, but then the juror later revealed that she had a problem with the State Attorney’s Office because they were unfairly treating her mother. In that case, the appellate court affirmed the trial court’s discretionary determination these facts established that a concealment had occurred. In an age where so many people (including jurors) share their thoughts on every topic imaginable, we can expect more claims that a juror did not disclose a personal opinion that reveals a bias material to the trial. These cases will inevitably struggle with determining whether a party’s venire inquiry is straightforward and clear enough to require a venire member to disclose a particular feeling. A recent example is an appeal I handled at the First District Court of Appeal, where the majority of the panel agreed with the plaintiff that the question was not squarely asked. R.J. Reynolds Tobacco Co. v. Allen, 228 So.3d 684 (Fla. 1st DCA 2017). The Florida Supreme Court is currently considering whether to grant review of this case. If it’s material, ask about it: The second prong of a nondisclosure challenge requires the movant to prove that the concealed information is “relevant and material to jury service in the case.” De La Rosa, 659 So.2d at 241. A point often missed is that both relevance and materiality are required; they’re different. Relevance focuses on the similarity between the nondisclosed information and the nature of the pending case. The complaining party must further establish that this prior litigation history is material to jury service in the context of the specific case at hand. Id. This additional requirement is essential to Florida courts’ desire to balance the right to a new trial against the need for finality in judgments. Morgan v. Milton, 105 So.3d 545, 547 (Fla. 5th DCA 2012). To accomplish that goal, the Florida Supreme Court has repeatedly emphasized that the materiality standard required by De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995), and Roberts ex rel. Roberts v. Tejada, 814 So.2d 334, 339 (Fla. 2002), is met only “where the

omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.” State Farm Fire & Casualty Co. v. Levine, 837 So.2d 363, 365 (Fla. 2002) (internal citations omitted); see also, Kelly v. Community Hosp. of Palm Beaches, Inc., 818 So.2d 469, 474 (Fla. 2002); Fine v. Shands Teaching Hospital and Clinics, Inc., 994 So.2d 426, 428 (Fla. 1st DCA 2008). When litigants assert that this prong merely requires proving that they “may have been influenced” to use a peremptory strike, they’re wrong. Fine, 994 So.2d at 428. A common example of nondisclosed information is prior litigation history. Kelly v. Cmty. Hosp. of Palm Beachers, Inc., 818 So.2d 469, 474 (Fla. 2002). Applying the materiality inquiry, not all false answers regarding accidents in a personal injury action are significant enough to make a jury verdict sufficiently unreliable to justify a new trial. Roberts v. Tejada, 814 So.2d 334, 345 (Fla. 2002); State Farm Fire and Cas. Co. v. Levine, 837 So.2d 363, 366 n. 2 (Fla. 2002). The fact that a juror has been in a car accident only makes the juror’s experience “related in a general sense” to a car accident case. McCauslin v. O’Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008). The complaining party must still prove that the information is relevant and material to jury service in the particular case, and that is true where the information “implies a bias or sympathy for the other side which in all likelihood would have resulted in the use of a peremptory challenge.” Id. at 561. This includes questions like: (1) how long ago the accident occurred; (2) whether the juror, the juror’s family or the juror’s friend was injured (like the plaintiff Mark Evans was); (3) the type and extent of any injuries; (4) whether the accident resulted in a lawsuit (as this case did); and (5) if so, was the juror, the juror’s family or the juror’s friend a plaintiff or a defendant. Id.; see also Roberts, 814 So.2d at 342. Importantly, a post-trial assertion of materiality can be defeated or supported by examining the movant’s conduct during voir dire. For example, allegedly concealed information is not material where the movant failed to strike another venire panel member who revealed the same information. See, e.g., Morgan, 105 So.3d at 548 (holding that non-disclosure of litigation history was “immaterial where trial counsel failed to strike the other members of the venire who had been involved in litigation”); Simon v. Maldonado, 65 So.3d 8, 12 (Fla. 3d DCA 2012) (holding no materiality where “another juror, who disclosed that he was involved in an automobile accident which resulted in a lawsuit and who identified several other lawsuits he was involved in, was seated on the jury”); Garnett v. McClellan, 767 So.2d 1229, 1231 (Fla. 5th DCA 2000) (holding concealment immaterial because defense counsel only seemed interested in striking jurors dissimilar from the juror in question). Given the failure to exercise a peremptory challenge when the same information was revealed by another juror, the complaining party simply cannot establish that it “would in all likelihood” have exercised a peremptory challenge as to the juror identified in the motion seeking a new trial. The converse is just as true — a movant can support a claim of materiality by pointing to having asked the question of other venire panel members who were stricken after disclosing this information. | January/February 2018 | 53


discovery to determine when the movant first learned of information now claimed to have been nondisclosed. When squaring off with a large defense firm, you might want to review its website for supporting evidence in the form of advertising about the firm’s proficiency in using technology and the internet to select jurors.

When considering this point, consider looking more closely at why other panel members were or were not stricken. For example, in Morgan, the Court noted that materiality was not necessarily proven just because other panel members revealing the same concealed information were stricken by the movant because those strikes could be explained by other factors. Id. at 548. In a personal injury action, that could mean that the injuries sustained by other panel members or their family members were much more serious than accident injuries not disclosed by a juror. Or, maybe those venire members disclosed other evidence that made them potentially hostile, like a juror who cares for a wheelchair-bound family member sitting to decide a tort case where the plaintiff was paralyzed. A Fourth District decision makes a similar point. In Smiley v. McCallister, 451 So.2d 977, 978 (Fla. 4th DCA 1984), the court explained: “It does not suffice for appellees to point out that none of the other jurors who acknowledged family accidents were stricken from the venire. Who knows what further inquiry of Ms. Lopez would have divulged had counsel been afforded the opportunity to develop the point with Lopez?” The impact of the internet: The information age is changing when a juror’s concealment is discovered. Now, parties can investigate the venire panel during voir dire. The natural assumption is that a party would use this information to exercise a peremptory strike, or perhaps shore up a cause challenge. But, it’s also foreseeable that some will hold back a valid objection, with the intent of hedging their bets in case the jury trial is lost. Or, they may even wait until the trial is underway and then request a mistrial, like happened in a recent trial of mine. R.J. Reynolds Tobacco Co. v. Allen, 228 So.3d 684 (Fla. 1st DCA 2017). While Florida’s appellate courts (including my case) have not addressed this issue, other states have and they’ve concluded that it is the responsibility of a party to object to the inclusion of a potentially disqualified juror at first notice, and that failure to do so waives the objection. See, e.g. Brines By & Through Harlan v. Cibis, 882 S.W.2d 138, 140 (Mo. 1994); Commonwealth v. Brewer, 297 SW.3d 905, 907 (Ky. Ct. App. 2009). Arguably, Florida’s requirement of candor to the court also requires prompt disclosure. See Merkle v. Guardianship of Jacoby, 912 So.2d 595 (Fla. 2d DCA 2005). This all raises the possibility of a new line of attack when faced with a nondisclosure claim — propounding 54 | January/February 2018 |

When claiming nondisclosure, always request a juror interview: A critical question often overlooked in post-trial filings is whether the person addressed in the new trial motion is the same person who sat as a juror. Numerous Florida decisions have held that affidavits and supporting documents are not sufficient to establish a juror’s identity. See, e.g. State Farm Fire & Cas. Co. v. Levine, 875 So.2d 663, 666 (Fla. 3d DCA 2004) (traffic report did not prove that juror was the person involved in the accident); Glover Distrib. Co., Inc. v. F.T.D.K, Inc., 816 So.2d 1207, 1212-13 (Fla. 5th DCA 2002) (copy of final judgment did not establish identity of juror); Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 557 (Fla. 4th DCA 1998) (affidavit did not establish identity of juror as a court litigant); Lonschein v. Mount Sinai of Greater Miami, Inc., 717 So.2d 566, 566-67 (Fla. 3d DCA 1998) (certified copies of civil index of court records did not establish juror’s identity). For this reason, juror interviews are essentially required to determine the juror is the person addressed in the supporting documentation containing allegedly nondisclosed information. See State Farm Fire & Cas. Co. v. Levine, 875 So.2d 663, 666 (Fla. 3d DCA 2004) (traffic report was insufficient to establish materiality). And, sometimes a closer examination of these materials suggests their inaccuracy. For example, an insurance claims summary document may state that a person with the same name as a juror was in an automobile accident, but other attached documents may affirmatively represent that this same person was never in an accident. Incomplete information is simply not good enough to support a request to void a verdict, and to order the parties and the court to undertake another trial.


is a founding shareholder of Brannock & Humphries, an 11-lawyer appellate firm with offices in Tampa, Tallahassee and Sarasota, that has been twice named as the top-rated small litigation firm in Florida by Super Lawyers. She’s AV preeminent with Martindale-Hubbell and is recognized by numerous “Best Lawyer Lists,” including Best Lawyers in America, Chambers USA, Florida Trend Legal Elite (Hall of Fame), and Super Lawyers (top 100 of Florida lawyers). She’s an FJA EAGLE (Founder level), and received the FJA’s S. Victor Tipton Award for superior achievement in legal writing and commitment.

Correction from EIC In the November/December issue of the Journal we incorrectly spelled the name of Shea T. Moxon of the Brannock & Humphries law firm, who authored that issue’s FJA Appellate Practice Section column, “Don’t Just Preserve the Record — Make a Good Record.” We regret the error and any inconvenience it may have caused, and we extend our apologies to Mr. Moxon and the firm. Ed.


Post-Joerg Florida:

How to Stop the Defense From Slashing the Boardable Specials of Plaintiffs Who are Medicaid or Medicare Beneficiaries by Fay O. Pappas


Consider this hypothetical: A. You represent a Medicaid beneficiary for serious personal injuries (for demonstration purposes, let’s pretend it’s a cervical discectomy at C6-C7 with a couple of nights at a local hospital, preceded by a round of steroid injections and other failed conservative measures). B. Thus, your client’s gross medical expenses total $150,000. C. But after adjustment by Medicaid, the plaintiff’s net medical expenses look more like $5,000 for which Medicaid has a statutory right of reimbursement. D. Next, imagine defense counsel serves you with a Motion in Limine, asking the court to restrict your client’s boardable medical specials to her Medicaid lien amount. E. You read that right. Defense counsel wants to erase nearly 97 percent of your client’s gross medical specials solely because your client is so poor that she qualifies for Medicaid in Florida. Now consider this second hypothetical: A. Same facts as above, except that your client is a Medicare beneficiary.2 B. In other words, defense hopes to erase 97 percent of her boardable specials solely because your client is so old that she qualifies for Medicare. What do you do now?

56 | January/February 2018 |

I. Gut the “Windfall” Project

First, you will want to completely gut that misleading “windfall” argument. Defense counsel’s most persuasive pitch is also the most obvious one. Namely, he will whine to your judge that “it’s just not fair” that the plaintiff gets a shot at recovering all of her past medical expenses before the jury “when she really only owes X.” What defense counsel is doing here is redefining the purpose plaintiffs show juries their gross medical specials to begin with as nothing more than an attempt at a double recovery. Here’s what you say: your client is not requesting a windfall, but rather wants to present evidence of the actual past medical bills for four distinct purposes that have nothing to do with a cash grab: 1. To prevent the jury from hearing any evidence of a collateral source covering some or part of the bills; 2. To present evidence of the extent and seriousness of the plaintiff’s injuries; 3. To present to the court evidence of non-economic damages; and 4. To avoid confusion.

II. Get to Know Joerg (Very, Very Well)

“I cannot agree that […] the compassion of charitable contributors and taxpayers should become a device for reducing the legal liability of a tortfeasor” wrote Justice Leander J. Shaw in his 1984 dissent

the point of qualifying for Medicaid in the State of Florida. In other words, a future plaintiff in another case would be in a better position before the jury than your client in the instant case by virtue of either failing to avail themselves of health insurance coverage period, or by simply being in a better financial position than your client is so as to not qualify (or need) Medicaid. It should be clear now that the ruling your opposing counsel seeks is actually disastrous public policy thinly disguised as “fairness” to his deep-pocketed insurer or corporate client.

III. Remind the Court System Isn’t Broken

in Fla. Physician’s Ins. Reciprocal v. Stanley.3 It would have taken 31 years, but a majority of the Florida Supreme Court may have finally agreed with him.4 In Joerg v. State Farm Mut. Auto. Ins. Co.,5 the Supreme Court found that payments from collateral sources and payments from government benefits such as Medicare and Medicaid are not admissible because such evidence may confuse the jury with respect to both liability and damages. Critically, the Court held that the admission of any evidence of “social legislation benefits,” such as those received from Medicare, Medicaid, or Social Security, is highly prejudicial and constitutes reversible error.6 Thus, you must argue that prohibiting plaintiff from introducing the full value of her past medical bills into evidence will affect issues such as non-economic damages, and would “cheapen” and possibly reduce the value of plaintiff’s claims in the minds of the jury, thus giving the defendant a “benefit of the bargain” by way of a reduced verdict. Ultimately, the prejudice plaintiff will face if the reduced medical bills are presented far exceeds any prejudice the defendant may encounter if the bills are not reduced for the jury. By allowing the defendant to benefit from collateral source payments during trial, the court would be penalizing the plaintiff for carrying health insurance. That penalty is compounded in the case of a Medicaid beneficiary because the restriction in boardable past medical bills defendant seeks would unavoidably reveal plaintiff to be indigent to

Special thanks to my law partner, Michael K. Bailey, members of FJA’s affiliated listservs, as well as TLEL, for not only their contributions to this article, but to my own success in litigating this issue before Florida courts. “If I have seen further than others, it is by standing upon the shoulders of giants” – Isaac Newton 2. Medicare and Medicaid are the same animal for the purposes of Florida’s Collateral Source Rule. See Section 768.76(2) (b), which states “Notwithstanding any other provision of this section, benefits received under Medicare or any other federal program providing for a Federal Government lien on or right of reimbursement from plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.” (Emphasis added) 1.

Because each appellate jurisdiction and the Florida Supreme Court already allow post-trial set-offs and no decisive common law exists to exclude the introduction of relevant evidence to the jury in the form of actual medical bills incurred, the only possible reversible error your court could make regarding the introduction of the full medical bills would be if your court ruled for the defendant. Additionally, the defendant’s position would invite errors through the introduction of health coverage from “social legislation benefits” (Medicare and Medicaid), which may happen should your court allow defendants to prevail in their introduction of reduced medical bills.

IV. Conclusion

In this post-Joerg world, no Florida state judge should be seriously considering slashing your client’s boardable medical specials just because age or poverty, or the combination of the two, afford her “social legislation benefits.” But, if you are an FJA member facing this issue, I hope this article gives you hope. For more information, including additional resources, feel free to contact me directly at or through one of the FJA’s excellent listserv communities.


is an associate attorney at Bailey Fisher, PLLC, whose practice concentrates on medical malpractice, wrongful death, birth injuries, serious auto and trucking collisions, and slip and fall. Ms. Pappas is also an active member of the FJA Young Lawyers Section Board. She currently serves on the Executive Board of the FJA Women’s Caucus.

452 So.2d 514, 517. There are four other recent Florida opinions that address the function of the collateral source statute at trial you need to be aware of. In addition to Joerg, as discussed herein, these opinions include the Supreme Court’s decision in Goble v. Frohman, 901 So.2d 830 (Fla. 2005) (AKA “Goble II”); Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003) (AKA“Goble I”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 547 (4th DCA 2003); and Sheffield v. Superior Insurance Company, 800 So.2d 197 (Fla. 2001). After a careful analysis of these cases, you will want to argue that the court should deny defendant’s Motion in Limine because: 1) it does not correctly interpret the law in Florida regarding the collateral source rule and exclusion of collateral source reductions from evidence (specifically Medicare and Medicaid); 2) plaintiff’s arguments are consistent with the practices set forth in Florida case law, 3. 4.

which allow into evidence the full amounts of medical services billed with set-off for collateral source reductions to occur post trial, if the defendant can prove a health benefit is a “collateral source” under the meaning of the statute at such post-trial hearing; 3) denying defendant’s Motion in Limine would prevent the defendant from circumventing the law in Florida under which set-offs cannot be applied to future damages; and 4) plaintiff can present all of the evidence of past medical bills incurred for other purposes than a “double recovery,” i.e., to avoid confusion in the jury box (described above). 5. 176 So.3d 1247 (Fla. 2015). 6 See id. | January/February 2018 | 57




by Mike Campbell

“Can you draw the pedal for me?” That’s the only question I can remember from my deposition. I was around nine years old and I wasn’t frightened by the man asking me questions, or by the scary person wearing a mask at the end of the table (who I would later discover was a court reporter). I was frightened because I had no artistic ability whatsoever. I could, at that time, remember watching the pedal break and witnessing my dad have a catastrophic injury that would later take his life. I could remember my dad work on the pedal in our garage in Kansas City. But, I couldn’t draw it and I was scared. But, then I heard, “objection.” Relief came over me. You see, I had a superhero with me, watching over me, protecting me from scary questions and scary people. I recently had to fill out a questionnaire asking me to explain why I wanted to practice law. Here’s my response: “Many years ago my family experienced a tragedy that put us right in the middle of the legal world. As a result, my superheroes growing up did not wear capes; they wore suits and carried briefcases. They argued in courtrooms and fought tooth and nail for my family. I’ll always be indebted to those attorneys and I think they know that. That’s the power we have as attorneys and we should always remember the lifelong impact we have on our clients.” That’s the truth. That’s my truth, anyway. When I was five years old my dad purchased a brand new bicycle from a bike shop in Kansas. Both my godfather and I agreed to ride back in my dad’s truck while my dad rode behind us at a safe distance. I watched through the rear window as he wrecked. Memories are funny, though. I can no longer recall the wreck or much that happened shortly after. There’s a slideshow of memories though: Wrestling with my dad in a hospital bed one of the numerous times he was having surgeries, meeting with attorneys, my dad’s funeral. Good memories, sad memories. My dad suffered a catastrophic injury when the pedal on his brandnew bicycle snapped off halfway through a cycle. He fell into the bike and suffered substantial internal injuries. He was later treated at a medical facility in Kansas, and his care was completely mismanaged. There are things that happened to him that I cannot write out of respect for his privacy and for what he went through. However, the result of the doctor’s actions led to undetected blood clotting, which traveled to an artery. He suffered a massive heart attack in our home and died in my mom’s arms. My mom was left to raise four kids, alone. We had limited means at that time and my dad had been the primary provider for my family. When my dad died, we were broke … mentally, spiritually and financially.

58 | January/February 2018 |

Before my dad died, I can remember wearing clothes from the Salvation Army, shopping for food at the local Aldi (before Aldi was a thing), going to mass every Sunday morning and not having many concerns about our lot in life. We were a family and we loved each other, and had a roof over our head and food to eat. My dad and my mom cared for us. When my dad died, I’ll never know the stress my mom went through. I never want to know. A close friend of the family talked to my mom about investigating my dad’s case. He was an attorney with a law firm in Kansas City who pleaded with his firm to investigate this case. The background to this is literally something you might read in a legal novel, but know this: This lawyer was relentless, was willing to give up everything to fight for the case, and nearly did. There is too much to the story to share here, but that is where I came to know that the passion which drives good and decent trial attorneys is not money. Money comes and goes. What drives good and decent trial attorneys is justice and a desire to help the helpless.

and conservator for her children (including me) because of how terrible he said her judgment was. Our attorneys protected her and she believed in them. The judge eventually relented and retracted his own order. My mom trusted her attorneys. She was right to … and she will tell you that. My mom is tough. There are other stories I can tell you: Spending my early childhood in courtrooms, law offices, and learning about lawsuits while other kids played catch with their dad or did what normal kids do. I enjoyed it though. My attorneys were my superheroes. I liked being around them. I started to think that one day I could become one too.

This attorney discovered a number of troubling things when he investigated our case. First, the bike manufacturer skimped on buying the proper parts for the bicycle pedal-and-gear mechanism. Instead of finding the right part, the company ordered the employees at a manufacturing plant to literally jam and hammer the defective parts into the bike. Our lawyer went to the manufacturing plant and witnessed for himself how the defect occurred during the process, and how it was known to the company. The employees openly admitted that they knew the defective part would cause harm to someone and told management, who ignored them. The bike company had been warned multiple times about the shaft snapping on the pedals, leading to bicycle returns at stores throughout the United States. The manufacturer never recalled the bikes. Either the company didn’t believe someone could be catastrophically injured from this defect or it did, and simply did the cold math: A potential lawsuit versus a nationwide recall of bicycles. They decided to go with the risk of a lawsuit. Our attorney also discovered that the doctor who was treating my dad permanently damaged him, the result of which would eventually lead to my dad’s death. The attorney was convinced that both the manufacturer and the doctor were responsible for my dad’s death. He talked with my mom at length about the steps the family should take to hold those parties responsible. My mom agreed and we eventually filed suit against both. My mom is as mentally and physically tough as they come. Here’s one story to prove that: After my family filed suit against the manufacturer of the defective bicycle, our case was forced into mediation. In our case, the judge who was mediating the case told my mom she should take a certain amount of money and run. Our attorneys told her to stand firm, that the sum she was offered was paltry in light of how much we had lost. My mom listened to our attorney’s advice. The judge brought her into an open courtroom in front of all the attorneys and told her that she was a terrible mother for not accepting the settlement and then he actually appointed a guardian

When our case against the manufacturer was finally resolved several years later, we had received a small amount of justice. The manufacturer of the bicycle eventually settled with my family … and with several others. It turns out many people had been injured by these defective bikes and the company’s calculated risks didn’t pay off. There are horror stories I could share about this case and the dirty tricks played by the actors involved that are nearly unbelievable. Someday, maybe I’ll share them. John Grisham has done a pretty decent job describing cruel company decisions in many of his books. But know this: A company that makes its financial decisions by weighing a human life versus profits will go to any lengths to protect those profits. I’ve seen this first-hand in my own practice and in my own life. The cases against this specific corporation eventually drove it into bankruptcy, got its terrible bikes off the road, and reformed certain manufacturing processes. All of this was possible because of the trial lawyers who helped us. They believed in us, fought for us and did everything they could | January/February 2018 | 59


to make our family whole. I am friends with them to this day. The main attorney who took our case taught me how to shoot a gun for the first time, his wife taught me the alphabet when I was very young and he has stayed in touch throughout my entire life. He and his family are family to me. I see a lot of negative talk about trial attorneys. For me, for my family, and for countless others, trial attorneys are who stood up and demanded that the parties who cause harm are held responsible for their actions. No amount of money could bring my dad back, but at least that bicycle manufacturer was unable to produce any more defective bikes. While the rest of the world moved on after my dad’s death, attorneys working in the background fought to give his death meaning. They fought for a single mother of four who had no money to her name. I am now a trial attorney. I am proud to call myself a trial attorney. But trial attorneys are under attack. We are told by well-paid politicians that trial attorneys are causing businesses to go under and insurance rates to go up. My experience is that businesses go under because they are bad businesses, and insurance rates go up because insurance companies like to make money. The people who throw these accusations around don’t know the attorneys who helped my mom and my family. They don’t know me. They don’t know my colleagues. They don’t understand that most of the laws they pass don’t affect trial attorneys; they affect the people trial attorneys represent. These politicians work to the benefit of a corporation or a company that has done some harm or wants to do something harmful, only cheaper and with no consequence. Politicians should know this: There’s no law they can pass to stop trial attorneys from trying cases and working hard for their clients. I can understand how a politician who is more accountable to large donors than to the citizens of his or her district might be told (or even believe) that a trial attorney would have a financial motive to file more lawsuits. Maybe that mistaken perspective is all they have known. But, real trial lawyers like the attorneys who worked on my family’s case and the colleagues I know in our profession are not in it for the money. We are deeply passionate about our clients and our work. No amount of restrictions or laws will stop us from helping people who have been wronged. We are born with this passion … and politicians cannot legislate that passion away, no matter how hard they try. I recently tried a civil case where the jury was out for 20 minutes before it returned a verdict against my client. It takes me longer than 20 minutes to flip through my Facebook feed! I was heartbroken for my client. I thought that the jury hated me. They hate what I stand for. I thought, for just a moment, that it would be so much easier to switch sides. 60 | January/February 2018 |

Then my client told me “thanks” for fighting for her; that we did our best; and that she [was] glad we agreed not to settle. And my phone started to ring from fellow trial lawyers who told me to keep my chin up and told me that we all fight in the trenches to keep the other side honest. I would much rather be on this side. We are told that there are always two sides to an issue, two sides to a debate. I don’t say this arrogantly, but I say it because of my experience: I would much rather be on this side and lose, than on the other side and win. I believe that there are plenty of good people on the other side, but for me and for my fellow trial lawyers, we fight for what is right and what is good. We don’t fight to win popularity contests, for approval or for self-assurances. We fight for the inviolate principle that every person deserves his or her day in court. We have a proud responsibility to strap up our boots, face our fears and give that opportunity to our clients. What a great privilege that is. I am thankful for having a trial attorney in my corner to give my family that opportunity and daily I am grateful for the ability to give that same opportunity to my clients. I know you, my trial attorney family, feel that way too. This is why we fight. Reprinted with permission from The Missouri Trial Attorney, © 2017


is a member of the Missouri Association for Trial Attorneys and the American Association for Justice. He practices at The Law Office of Mike Campbell in Columbia, Missouri.



Richard Chait At the core of the Florida Justice Association’s (FJA) mission is preservation of the civil justice system. This becomes a critical call-to-action to our members during Florida’s legislative process, which this year began January 9 and lasts through March 9. FJA members from throughout Florida volunteer their time by coming to Tallahassee and spend days, weeks, and sometimes months to protect and further our civil justice initiatives. What follows is an inspiring Q&A with FJA EAGLE Member Richard Chait, who continues to be a leader in championing efforts involving Workers’ Compensation Reform. Q: Tell us about your experience with Workers’ Compensation Law. Why are you so passionate about this area of law? A: In my 30 years of practice as a Workers’ Compensation attorney, I’ve observed the continual erosion of workers’ rights through major reforms as the Legislature depletes an already reduced pool of benefits and entitlements under the law. Year after year of these harmful reforms drove myself and other leaders of the Workers’ Compensation Bar, allied through the FJA and Florida Workers’ Advocates, to become more unified — we ultimately knew we had to take our battle to the courts. In 2016, my law firm served as lead counsel in the Florida Supreme Court Castellanos and Westphal cases. As we built these cases and outlined our constitutional arguments, my passion to prevail strengthened. When the Supreme Court ruled favorably for the plaintiffs in both cases,

I became even more driven to protect and maintain the integrity of these rulings.

protection to preserve the civil justice system and, often, the only layer of protection.

Q: What is the most rewarding part of advocating in the legislative process? A: As an FJA member, my involvement has allowed me to form close friendships and bonds with fellow leaders whom I would never have met otherwise. We make a difference, and we enjoy each other’s company along the way. I am a better attorney, leader, and person because of those I work with in this process.

Q: What would you say to someone who has never been up to Tallahassee to lobby? A: I recommend all FJA members experience this process, which will allow them to appreciate the significance of our work in Tallahassee and how close we often come to having very unfavorable outcomes for our clients.

Q: Why is it important for FJA members to be involved in the legislative process? A: The FJA has an incredible reputation, but we can never underestimate the reality that the FJA is only as strong as its membership. FJA members can help by monitoring and overseeing the process to interpret proposed legislation and succinctly identify the problems that arise. We must be equipped to present cogent solutions to negative proposals as they are filed. FJA members are the experts and best suited to handle these responsibilities during the legislative session. We are the last layer of

62 | January/February 2018 |

There is a mutual respect and feeling of energy shared by all who are involved, and this becomes contagious. We have an exceptional mentoring program, so you will never feel uncomfortable or unprepared. Coming to Tallahassee and engaging in the process is a game-changer. Your participation will make a difference.


THANK YOU, EAGLES In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members. BENEFACTOR – $10,000

Richard E. Chait

Upgraded by: Brian O. Sutter

SPONSOR – $3,000 Patrick Douglas Brannon Recruited by: Christopher Ligori

Christopher M. Smith Recruited by: Christopher Ligori

Alexis Rae Campos Recruited by: Christopher Ligori

William H. Winters Recruited by: Christopher Ligori

Trevor Wade Colvin Recruited by: Christopher Ligori

Marc E. Yonker Recruited by: Christopher Ligori

Herman J. Russomanno

Upgraded by: James W. Gustafson, Jr.

ASSOCIATE – $1,500 Justin William Pimenta Recruited by: Hendrik Uiterwyk Michael Glenn Srebnick Recruited by: Richard E. Chait Wayne Cameron Stephenson Recruited by: Troy Rafferty

BFE PATRON – $5,000

Allen J. Pipkins Recruited by: Christopher Ligori

Recruited by: Eric Romano

64 | January/February 2018 |

as of 1-4-18

2017 - 2018 EAGLE RECRUITING CHAMPIONS Since May 10, 2017 Recruiter Name

Recruiting Value

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

Lake H. Lytal, III



Brenda S. Fulmer



Dale M. Swope



Paul M. Anderson



Curry G. Pajcic



Carter Scott



Matthew K. Foster



Jonathan T. Gilbert



Damian B. Mallard



James R. Holland, II



Christopher Ligori



J. Alistair McKenzie



James W. Gustafson, Jr.



Laurie J. Briggs



Richard E. Chait



Howard C. Coker



Matthew Nichols Posgay



Sean C. Domnick



Hendrik Uiterwyk



Vivian H. Fazio



Fred A. Cunningham



Todd Jordan Michaels



Tiffany M. Faddis



Bernard F. Walsh



Thomas W. Carey



Ben J. Whitman



Gregory M. Yaffa



David J. Zappitell



Eric Romano



Joseph N. Nusbaum



James W. Guarnieri, Jr.



Virginia M. Buchanan



Fermin Lopez



Waylon Thompson



Peter Hunt



Michael Brevda



Hubert R. Brown



Marci Ball Elordi



Cassidy Perdue



Philip A. Gold



Robert Mayer Rubenstein



Adriana Gonzalez



James Lawrence Magazine



Celene Humphries



Nathan P. Carter



Christopher P. Janes



H. L. (Larry) Perry



Paul D. Jess



Vanessa Brice



Jason F. Lamoureux



David Corey Dismuke



Skip Pita



Anthony Quackenbush



Kimberly J. Syfrett



Troy Rafferty



James G. Vickaryous



as of 1/4/2018 | January/February 2018 | 65

66 | January/February 2018 |

Index Appeals Intra-district conflicts; question certified as to existence of certiorari jurisdiction…17

Education Duty of state to make adequate provision for high quality education; unenforceable by the courts…18

Attorneys, fees §57.105 sanctions; joint and several liability between law firm and client improper…17

Evidence Adverse inferences; should be used only when normal discovery procedures would be unreasonable…42

Fee-shifting statutes; entitlement to reasonable fee is not limited by fee agreement between lawyer and client…16, 28 Timing of PFS; 90-day period for service of PFS starts with service of complaint on CFO…47 Auto UM; coverage applies in collector vehicle policy unless valid statutory rejection by insured…28 Auto Tips Autonomous vehicles; regulation and liability issues; discussion of need for laws…20 Civil Procedure Rehearing; rehearing rule 1.530 applies to a dismissal for failure to prosecute…47 Summary judgment; practice tips re delaying summary judgment hearing due to incomplete discovery…44 Severance; error to sever counter claim and affirmative defenses from main claim where facts underlying the main claims are interwoven…47

Business records; printouts of data prepared for trial are admissible if the underlying data is kept in the ordinary course of business…41 Business records; a witness can lay the foundation for records of another company…41 Daubert; opinion based on “training and experience” upheld despite challenge…40 Excited utterance; statement subject to hearsay exception is admissible to corroborate consistent in-court statement…40 Liability; where liability admitted and only damages at issue, evidence of liability is prejudicial…41 Other crimes or bad acts; admissible to prove a material fact at issue even if prejudicial…41 Permanency; directed verdict requires unrebutted expert testimony…42 Prior convictions; misleading statements does not allow inquiry into nature of convictions, only the dates…42

Closing Arguments Misleading statements; discussion of issues and remedies…48

Spoliation; dismissal as a sanction requires evidence that spoliation fatally prejudiced the plaintiff…42

Comparative Fault Waiver; defendant waived right to reduction of verdict by representing to jury that there would be no reduction…15

Slip and fall on county sidewalk; constructive notice of dangerous condition not implied by food establishment inspection ordinance…41

Costs Prevailing party; no entitlement to costs when dismissal for forum non conveniens…17

Surgeon General’s Reports re tobacco; inadmissible hearsay and may not be used to bolster experts’ opinions…15

Discovery Adverse inference; not warranted for failure to attempt to locate past employees who had been retired for 30 years…47 Sanctions; striking of expert witness warranted for serious attorney misconduct during discovery…47 Trade secrets; proof of necessity for breaching privilege required…17

Trade secret privilege; recent cases discussion…42 Videotape; methods of authentication…42 Executive Director’s Message CLE; Workhorse seminar; tribute to John Romano…10 Expert Witness Striking; attorney misconduct at expert’s deposition…42 | January/February 2018 | 67

Index FJA Appellate Practice Section Jurors; nondisclosure; practice tips re the most common post-trial arguments… 52

Premises Liability Fall from ladder; speculation about placement of ladder and cause of fall required defense verdict…18

FJA Young Lawyers Section Damages; collateral sources; practice tips re medical benefits from Medicaid, Medicare and other social legislation…56

Slip and fall on county sidewalk; constructive notice of dangerous condition not implied by food establishment inspection ordinance…15

Insurance Affirmative defenses; insured’s failure to comply with a condition precedent waived if not pled with specificity…27

Transitory foreign substance on floor; failure to offer evidence of actual or constructive knowledge of hazard…18

Judges Certification of need for additional judges…14 Jurors Request for readback of testimony; judge’s response calculated to prevent request was inappropriate…16 Jury Instructions Amendments adopted re introduction of participants and juror questions…14 Various technical amendments adopted…14 Legislature 2018 issues; 2018 Session dates…16 Mass Torts Products liability; pharmaceuticals; discussion of amputations and other side effects of the Type 2 diabetes drug Invokana™...30 Mediation Contempt sanctions for failure to attend; compensatory fine can only include fees and costs caused by the contempt…17 Medical Malpractice Discovery, requests for admission, amendment of… 34 Expert witness qualifications, presuit requirements…35

68 | January/February 2018 |

President’s Message FJA; 2018 legislative prospects; fundraising successes…8 Products Liability Highway guardrails; hazards from failure to perform as intended; discussion of issues relating to regulation...36 Tobacco; related loss of consortium claim did not establish Engle class membership or relate back to spouse’s direct claims…18 Special Focus CLE; details of Workhorse…12 Supreme Court Timing of appointment of justices to replace retirees; quo warranto inappropriate to address prospective conduct by governor that has not occurred…15 Torts Statute of limitations; intentional and negligent infliction of emotional distress…17 Workers’ Compensation Immunity; exercise of corporate officer exemption does not totally remove person from system and allow unfettered tort actions…16

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CALL FOR FJA OFFICER/DIRECTORS & FJ PAC TRUSTEE NOMINATIONS The FJA/FJ PAC Nominating Committee is seeking nominations for FJA Officer Positions of President-Elect, Treasurer and Secretary and 12 vacancies on the FJA Board of Directors. The FJ PAC is seeking nominations for Districts 3, 4 & 5 Board of Trustees vacancies. The committee will present a slate of nominees to the membership for consideration at the FJA General Membership Meeting at 1:15 p.m. on Wednesday, June 20, 2018. The Annual General Membership Meeting will be held in conjunction with the Florida Justice Association’s Annual Convention, June 20-23, 2018, at The Breakers, Palm Beach. Nominations will also be accepted from the floor at that meeting. Elections for these FJA/FJ PAC positions will take place on Thursday, June 21, 2018, from 3:30-5:00 p.m.

If you are interested and would like further information about officer and Board of Directors positions, please contact Lee Phillips by May 11, 2018, at (850) 521-1033 or | January/February 2018 | 69

Advertisers Index ADR SERVICES Upchurch, Watson, White & Max.............................................. ..... inside back cover ATTORNEY ADVERTISING Brannock and Humphries............................................................... 7 Coker, Schickel, Sorenson, Posgay & Iracki, P.A.............................. 3 Craig Goldenfarb P.A.................................................................... 33 Kaster, Lynch, Farrar & Ball, LLP................................................. 29 The Liquor Law Center................................................................. 63 Steve Watrel, P.A........................................................................... 66 Terrell Hogan................................................................................ 55

EXPERT WITNESSES Physician Life Care Planning.......................................................... .... inside front cover The TASA Group ..........................................................................25 LITIGATION FUNDING Fast Funds, Inc..............................................................................39 VIDEO PRODUCTION Image Resources, Inc...................................................................... 19 Video Law Services......................................................................... 35

BANKING Sabadell United Bank/Iberiabank.................................................. 43 COURT REPORTING SERVICES Universal Court Reporting..............................................................4

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70 | January/February 2018 | | January/February 2018 | 71

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The Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice. Jimmy Gustafson, Searcy Denney Scarola Barnhart & Shipley PA

Lobbyists for big business and big insurance corporations attempt to force tort reform bills through the Legislature that would destroy the civil justice system and take away the ability of everyday citizens to hold them accountable under the law. Each year, the Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice. EAGLE makes that possible. Support EAGLE, and the Florida Justice Association will continue to protect a civil justice system that works for all.

MAKE AN EAGLE PLEDGE TODAY! For more information on EAGLE benefits, pledge levels, or to download the pledge form, go online to the FJA website, navigate to the About FJA tab, and then click on EAGLE. EAGLE Department @ (850) 521-1096

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